Saturday, August 8, 2009

Can You FOIA to Find Out If You Have Been Reported to the White House? And What is the ACLU's Position?

I am clueless about FOIA and related law, but would be interested in knowledgeable responses to the following question. Is there a mechanism by which an individual can find out, or require the government to disclose, whether he or she has been named (or some web posting, statement, or other form of speech of the person named) to the White House email address for submitting "fishy" "disinformation" on the health care debate?

White House Press Secretary Gibbs denied that the White House is "collecting names," but it is hard for me to see how, if it is seeking to counteract what it regards as "disinformation" or "fishy" stuff, it can do so without keeping track of that which it wants to respond to and that which it doesn't. In any event, is there a way that a citizen can force the government to disclose if he or she has been flagged to the White House?

I have also been trying to figure out what, if anything, the ACLU has said officially on the subject. I served for several years on the Free Speech Policy Committee of the ACLU way back when, and I can't imagine that back then it would not have taken a strong position on such a move by any White House, regardless of party. On the other hand, as Wendy Kaminer has shown, it's not that ACLU anymore, so I'm not so sure.

I've been on the ACLU official website and don't seem to find anything, but maybe I'm just not navigating it expertly. One reason I think there must be something there that I'm not finding is that FoxNews reports that in response to an inquiry, the ACLU responded:

The ACLU said in a statement to FOXNews.com that the White House blog is a "bad idea that could send a troublesome message."

But the organization added, "While it is unclear at this point what the government is doing with the information it is collecting, critics of the administration's health care proposal should not fear that their names will end up in some government database that could be used to chill their right to free speech."

I imagine that if the ACLU issued a statement like that, it should appear somewhere on its website, so if someone could point me to it, or anything else the ACLU has said on the matter, I'd appreciate it.

If it is an accurate statement of the ACLU's position, I do not exactly understand the following. (This is a question quite apart from how this position is consistent with the ACLU's traditional protectiveness of speech against the government.) How does the ACLU get from "unclear at this point what the government is doing with the information" to the reassuring (on what basis, one wonders) conclusion that "critics ... should not fear that their names will end up in some government database"? Moreover, how does the ACLU get from there to the conclusion that critics should not fear that they could end up in some database that "could be used to chill their right to free speech"?

How could the ACLU possibly know any of this? How could it possibly know this given its own statement that it is "unclear" what the government is doing with the information? Did the ACLU obtain some court order ensuring this that I don't know about? Did it have a conversation with the Obama administration, to which it grants credence it has not traditionally granted any government administration? And in any case, how does it get from "unclear" to "should not fear"? It is a statement far enough from traditional ACLU views that I wonder whether it is actually accurate, and I would welcome anyone pointing me in the right direction at the official ACLU website to clear up its official position.

(Update: MH at 10:42 says:

I'm puzzled by the ACLU's wording too. Calling it a bad idea and saying they are unsure of what the administration plans seems inconsistent with the last statement. Perhaps the spokesperson meant to say "critics of the administration's health care proposal should not have to fear that their names will end up in some government database that could be used to chill their right to free speech"?

That wording would make a lot more sense to me, too. Could that be the ACLU's actual position? ... A day later, I haven't seen anything to indicate that the FoxNews statement is not an accurate statement of the ACLU's position; please advise if that turns out not be be so.)

I realize this is a pretty incendiary topic, on which I certainly have opinions, but in this case I'm really looking for knowledgeable views on the freedom of information questions, as well as the official ACLU view, if any.

(Update note: Generally: I'm looking for legally knowledgeable information about how and whether it is possible to find out whether one's name has been sent to a White House email address, in which the White House affirmatively created the account and invited people to send in information. I'm interested in hearing from people who actually know the law about this. I do not practice in this area, and I'm asking a question about the law. Re the ACLU, I'm trying to figure out what it's position is, and specifically to find out how, if at all, it differs from what was quoted in a FoxNews story. Again, I'm not actually inviting general comments of an incendiary nature, in any direction.

To 9:49 (and if the comment was satirical, my apologies for getting slightly huffy here): I'm afraid I don't understand, first, how it is "rank paranoia" and "shameful" to ask a question as I did (see above). Second, I do not see in what sense it has been asked in anything but a "civil" tone. It does not seem to me paranoid, shameful or even the slightest bit peculiar to ask, if the White House sets up an email address and invites citizens to send information concerning their fellow citizens, how and whether one might find out whether one's name appears therein. It strikes me as ordinary and normal.

In any event, going to the question of the ACLU and its role - well, one of the general propositions of the ACLU's Free Speech Policy Committee, when I served on it, was that citizens were quite entitled to ask questions of government, and to ask them whether or not they seemed to government, or anyone else, paranoid or shameful or unworthy. And that as a general matter, government had an obligation to respond to them, or make an affirmative showing why it would not. Government would often disagree, and then the ACLU would entertain the possibility of going to court. As well it should.

Re: 10:23. I imagine that this web move was indeed some WH staffer's not-so-bright idea. That happens in lots of White Houses. In that case, there is traditionally a sharp, vicious reaction out in the world at large, the White House mumbles some sort of statement that it there was some miscommunication and issues a quasi-apology while trying to save face, the offending thing disappears, and some hapless staffer loses his or her job. Pretty much as happened with the Air Force One flyover. What is disconcerting is that this has not happened, at least not so far.

A final rushed, alas cryptic update, and then I've gone internet dark:

I will simply say in all candor that I do not understand that there is a meaningful difference between citizens reporting "rumors" and such in the abstract to the White House email address, and reporting on fellow citizens. It has been a theme of many of the comments, and with all respect, I think it is a difference without a distinction. Certainly it is the sort of distinction that civil libertarians have long rejected, as a matter of principle.

The principle, however, is not precisely the one that the commentators seem to be saying. Commenters on this thread, at least, seem to be taking the view that you treat everything the administration is doing in good faith so that unless someone presents evidence of - well, I'm not clear what for many of our commenters would actually count as something, but let's say something that would cross the line. Short of presenting evidence of that, good faith requires that we trust the government. Other commenters naturally take the opposite view and claim that the administration acts per se in bad faith.

The American constitutional tradition, I suggest, is quite different from either - and consists of two not entirely consistent strands. First, it consists in not trusting the government. The freeborn citizens of this country have zero obligation to accept the government's claims that it collects information or does much of anything else in good faith; the government has the obligation, as a general presumption - it can be answered, yes, but still a presumption of popular democracy - that it, not the citizens, has to account. We honor that ornery, recalcitrant position not because we think it is always right, but because it is a considerable bulwark, procedural as well as cultural, against tyranny. That's why, crazy as I personally happened to think the left was acting during much of the Bush years, there was a certain abstract honor in it. But - and this is the crucial but - only as long as you are willing to grant the same to the other side in the alternation of power.

The second is a constitutional tradition of doing the opposite of what I just stated above. One way of defining the role of 'His Majesty's Loyal Opposition', to express it anachronistically, is to say that it expresses its views, not by taking the majority's positions as being in good faith - but in 'suspending public disbelief' in the bad faith of the majority.

Yes, that's a mouthful - and it is a very difficult balancing act. It requires acting as though one takes the majority's policies, proposals, etc., not in bad faith - which, however, is not quite the same thing as taking them in good faith, or even as though in good faith. There are subtle differences in affect, attitude and action as among these. But the problem of the loyal opposition is to walk as far as it can disagreeing with the majority's preferred policy, while still accepting that it is offered in good faith. At some point, it might not be able to do so, in which case, well, see the first, above. It won't be possible to give an a priori rule telling one when that point, in good faith of its own, has been reached, alas; hence many battles of the kind we are seeing over claims of good and bad faith. But the essential line is not really between good faith and bad faith - it is when the loyal opposition should drop a certain public presumption of good faith. On the matters of policy substance - raise taxes, lower taxes, etc., that should be regarded as a very drastic step. It has not been, by either party, in recent administrations.

However, one thing that the loyal opposition is always right to insist upon is that the 'traditions of process' be observed punctiliously - because those are the traditions of office by which the majority governs and to which the minority aspires. The office, including its sacralization through those traditions of process, is greater than either.

Again, to be blunt, however, the current administration does not seem to regard the office as greater than it. Hence the dispensability of traditions by which the office is honored. In my view, they include that the office of the President of the United States not ask one group of loyal citizens to inform on the indisputedly lawful, constitutionally protected speech-activities (even if you think there's a difference between that and the citizens themselves, which I don't) of another group of loyal citizens. The president of the United States has treated the constitutional speech of citizens as - phrasing here is important, and it is not the equivalent of "the same as" - not sufficiently distinguishable from asking citizens to be on the lookout for suspicious activities that might turn out to be perfectly legal, but might turn out to be a bomb on an airplane, but in which there is a legitimate question of sifting for possible grave and violent criminality. We don't really like it in the latter case - and shouldn't - but accept some part of it, even while arguing over its extent, because it is related to a function of government to protect the physical security of the commonweal against mass criminal violence, for example, mass terrorism. In the current situation, however, there is no question of criminality or the need to have a suspicion thereof. The speech is all constitutionally protected, and so even that reason of state, and not simply the desires of a political administration, is quite absent.

Why such a blunder over something that, at least if one is minimally attuned to the traditions of the office, is fairly obvious? At risk of giving great offense to many friends and correspondents, the current administration seems curiously to believe that it honors the office, rather the other way around. Moreover, the presence of - once again, so many friends and colleagues and correspondents, so risking offense - so many luminous and glittering intellectuals does not help the administration to find a certain humility in the mere office of the presidency. I imagine one reason is that a not-insignificant number do not especially see the office as having any special moral standing, compared, they would say, to a more just and universal institution of governance. A certain form of cosmopolitanism risks blinding one to the nuance of actual political communities, and to confuse their constitutive political elements with their mere politics.

Nor does it help matters that the prevailing intellectual (as distinguished from strictly political) mood within is one of pragmatism. Mere ordinary people will tend to believe that pragmatism is essentially a synonym for "moderate." It was part of the basis on which the Obama administration was elected - pragmatic moderates who would rule through the virtues of technocracy.

But pragmatism as a political philosophy in this case is not strictly a matter of devotion to moderation. It might be. But then it might not. As a political program, it can have the virtue of lowering the affective temperatures of politics - as happened, for example, in the generation in Scotland following the civil wars, for whom pragmatic, technocratic language ("and now, a Report on the types and numbers of cattle in Certain Highland Villages") offered a neutral language out of the wars of religion. But pragmatism is not essentially moderate or immoderate; pragmatism is essentially unconstrained except by its own calculations of a remarkably reductionist moral psychology, which is both its virtue and vice. It arises out of certain versions of utilitarianism, and in that consideration, such things as the embodiment of rights within a political tradition means something very different from what ordinary people might have thought.

This is equally a problem of pragmatists of the left and right, to be sure. But it is the pragmatism of the left that currently governs. Pragmatism in pursuit of ends that technocrats in majoritarian power have determined to be welfare maximizing has license to be radical and not always moderate, if that is what it takes. What matters are the costs on the other side. At this very moment, however, it might say, considerable numbers of people appear to have drawn from that a need to raise those costs across the country: and yet the pragmatists would be right in substance but wrong as to what people think they are doing. They think they are exercising their rights to speak and force their political representatives - not rulers - to hear them. Pragmatism's virtue is its pursuit of sense. The problem, however, is that a democratic polity consists partly of technocratic sense, but also of sensibility and that sensibility is embedded primarily in its traditions of process.

(Look, I do understand entirely that half the readers are yawning because this is all so obvious - whereas the other half simply lack the receptors for the kinds of moral distinctions I am suggesting; it is as though, cribbing William James, I were trying to convert them to the gods of the Aztecs. The whole debate and all these distinctions don't register, just as certain things quite fail to register with me, such as the distinction between collecting information on what one's fellow citizens are saying but not collecting information on them. We try through mechanisms of cultural assimilation to prevent those gaps from growing too large, and in our public life, we properly try and rely upon the suspension of public disbelief about the good faith of the other. When those run out of grip upon us, we have a big problem.)

See Burke on all of this, but particularly on his notion of the sublime, to grasp his moral psychology prior to reaching to his (often quite inconsistent) politics. There are subtle differences of sensibility in a democratic polity that the prevailing rationalist, reductionist pragmatism fails to capture, because it insists that all debates are over sense, rather than sensibility. (See also, a trifle weirdly, my post below about girls and college admissions, and how Austen no longer counts; fuse it with this one to grasp why the de-emphasis on Austen, and by extension the inability to use a language of politics to express a view on sensibility as well as sense is a way in which the intellectual class denudes our political language of the subtlety necessary to capture even the concept of a "loyal opposition" in a democracy. La trahison des New Class? Yeah, something like it.

I leave everyone else to sort it out, as I am going offline and won't be reading comments. I am sorry if I have offended a sizable number of people with this addendum. I'm also sorry that it sounds like what it is - a professor writing at high speed; I don't have time to go back and amend or edit. But my general view of this is captured by Peggy Noonan's weekend column and likewise, even more strongly if possible, a passing remark of hers a week or so ago in a WSJ column, to the effect that we need to revive the category and analysis of the New Class. Amen to that. Agree with her or not; she's eloquent and clear - even if I'm not.

But most damagingly to political civility, and even our political tradition, was the new White House email address to which citizens are asked to report instances of “disinformation” in the health-care debate: If you receive an email or see something on the Web about health-care reform that seems “fishy,” you can send it to flag@whitehouse.gov. The White House said it was merely trying to fight “intentionally misleading” information.

Sen. John Cornyn of Texas on Wednesday wrote to the president saying he feared that citizens’ engagement could be “chilled” by the effort. He’s right, it could. He also accused the White House of compiling an “enemies list.” If so, they’re being awfully public about it, but as Byron York at the Washington Examiner pointed, the emails collected could become a “dissident database.”

All of this is unnecessarily and unhelpfully divisive and provocative. They are mocking and menacing concerned citizens. This only makes a hot situation hotter. Is this what the president wants? It couldn’t be. But then in an odd way he sometimes seems not to have fully absorbed the awesome stature of his office. You really, if you’re president, can’t call an individual American stupid, if for no other reason than that you’re too big. You cannot allow your allies to call people protesting a health-care plan “extremists” and “right wing,” or bought, or Nazi-like, either. They’re citizens. They’re concerned. They deserve respect.

That's the question I put to a someone close to the admissions process at a reasonably selective school recently. His/her reply, which he/she would be the first to admit was deliberately highly exaggerated for maximum epigraphical effect is below (I've edited and cleaned up a disjointed conversation, so this is not a literal transcription). You can understand why my discussant was not interested in being identified and, as I say, this was exaggerated for maximum shock value.

(Although this is perhaps less shocking to Our Readership than I think, I still have a feeling I am going to regret putting this up. On the other hand, as an official card-carrying Bobo and father of a teen daughter coming up on college admissions, I have this undeniable fascination.)

Selective schools are not interested these days in girls who like English and history, like to read and are able to write clearly and well. Those skills fill the bell curve for smart girls ... Selective schools have absorbed the folk myths of bobo culture. So cool girls are math smart, genetically destined to be hackers, risk takers, and into competitive sports. Cool girls for selective schools prefer engineering over history, math over English, computer science over political science, and economics over psychology. A touch of Asperger's isn't a bad thing for a girl, either. Actually, it's a great thing. It will be a long time before being able to write well, disconnected from technical skills in math or science, will be a valued skill for its own sake in admissions. Actually, I don't think writing as a valued skill is ever coming back. That's why writing got transferred over to the SAT.

About a third of American adults have some form of living wills, advance care directives, and so on, but, notes the column:

When seniors who don't have them arrive in a hospital terminally ill and incapacitated, families and medical workers wrestle with uncertainty — while life-prolonging machinery runs, often at Medicare's expense. This has consequences for families and for the federal budget.

Enter Section 1233 of the health-care bill drafted in the Democratic-led House, which would pay doctors to give Medicare patients end-of-life counseling every five years — or sooner if the patient gets a terminal diagnosis.

On the far right, this is being portrayed as a plan to force everyone over 65 to sign his or her own death warrant. That's rubbish. Federal law already bars Medicare from paying for services "the purpose of which is to cause, or assist in causing," suicide, euthanasia or mercy killing. Nothing in Section 1233 would change that.

The actual text of section 1233 can be found here via Thomas, the Library of Congress data base (if the link doesn't get you to section 1233, search the data base using H.R. 3200, then go to section 1233). But as the column goes on to point out, the bill creates an undue conflict of interest for doctors. It is not just, as Lane says, that Section 1233 "addresses compassionate goals in disconcerting proximity to fiscal ones." (Mickey Kaus has made this same point.) The column raises a much more specific concern and conflict of interest for doctors:

Though not mandatory, as some on the right have claimed, the consultations envisioned in Section 1233 aren't quite "purely voluntary," as Rep. Sander M. Levin (D-Mich.) asserts. To me, "purely voluntary" means "not unless the patient requests one." Section 1233, however, lets doctors initiate the chat and gives them an incentive — money — to do so. Indeed, that's an incentive to insist.

Patients may refuse without penalty, but many will bow to white-coated authority. Once they're in the meeting, the bill does permit "formulation" of a plug-pulling order right then and there. So when Rep. Earl Blumenauer (D-Ore.) denies that Section 1233 would "place senior citizens in situations where they feel pressured to sign end-of-life directives that they would not otherwise sign," I don't think he's being realistic.

What's more, Section 1233 dictates, at some length, the content of the consultation. The doctor "shall" discuss "advanced care planning, including key questions and considerations, important steps, and suggested people to talk to"; "an explanation of . . . living wills and durable powers of attorney, and their uses" (even though these are legal, not medical, instruments); and "a list of national and State-specific resources to assist consumers and their families." The doctor "shall" explain that Medicare pays for hospice care (hint, hint).

Admittedly, this script is vague and possibly unenforceable. What are "key questions"? Who belongs on "a list" of helpful "resources"? The Roman Catholic Church? Jack Kevorkian?

Ideally, the delicate decisions about how to manage life's end would be made in a setting that is neutral in both appearance and fact. Yes, it's good to have a doctor's perspective. But Section 1233 goes beyond facilitating doctor input to preferring it. Indeed, the measure would have an interested party — the government — recruit doctors to sell the elderly on living wills, hospice care and their associated providers, professions and organizations. You don't have to be a right-wing wacko to question that approach.

In a separate post, I want to consider something that the column mentions in passing - that, according to the section's backers, it is merely "trying to facilitate choice — even if patients opt for expensive life-prolonging care." I'll try to find a moment to post on what I see as the relationship between that and the current love affair (I share the love, in part, to be sure) with behavioral economics.

In one sense, in other words, section 1233 can be understood as a Nudgy move to reset the default rules. The question then becomes, is it merely trying to set the default rules for addressing a topic that people would rather skip addressing - end of life issues, living will issues, health care directives - or is it a nudge for getting people, including ones now terminally ill, to shift their social default settings on whether or not to consume expensive resources, while putting it in the context of seemingly making your own decision about it? They are, clearly, two quite different propositions - and both of them amenable to the Nudginess setting of default rules analysis and, depending on how one sees it, either "facilitation" or "manipulation."

This question is implied by Chuck Lane's column, because he is pointing to a conflict of interest on the part of the provider of this advice, on which the distinction in part turns. But it also goes a long way further than the Post column, to a discussion of Nudge-the-book and the ways in which it can be either a means of facilitating the choices that people would rationally make but can't quite step up to the plate to make, or else a means of manipulating human psychology toward public policy ends that someone else has decided are the rational ends, whether people would agree to them or not. The principles of Nudge seem disconcertingly applicable to either agenda.

I'm a big fan of it as a facilitation process. I even buy the idea that there is a form of justified "libertarian paternalism" that is not merely an oxymoron or simple paternalism. But the one, libertarian paternalism and the facilitation of the choices that people will make for themselves and consider themselves rational for doing so, slides really, really easily into the other, paternalism, and manipulating choices. All it really takes is an apparatus of public policy and disconnected group of technocrats willing to decide the things the way that presumably All Rational People Would Decide If Only They Were [fill in the blank with your favorite technocrat - e.g., Ken Anderson]. (I'll try to get back to this, but probably not soon.)

Friday, August 7, 2009

Late last month, I taped a couple new podcasts for the Independence Institute's iVoices.org: One is on the Thune Amendment, to create national concealed carry reciprocity; the bill fell a little bit short of the number of votes needed to beat a filubuster. The other is on my Senate Judiciary Committee testimony against the nomination of Sonia Sotomayor.

One of the (many excellent) comments on my accounting/lawyer post below asks the sensible question ... given that many lawyers aren't going to be back in school again, are there any helpful suggestions for texts that might be used on a self-teaching basis? Alternatively, are there any genuinely functional and free/cheap online courses that teach accounting basics? Comments welcomed.

Update: Readers have given very useful suggestions in the comments. I've added a couple of others from emails. In addition, I'm moving up here the announcement that troll_dc2 pointed to on this DC program:

Financial Accounting Basics Target Business Attorneys

Attorneys with little or no formal accounting background should make use of the Continuing Legal Education Program’s “Financial Accounting Basics for Lawyers” course on August 24.

Jeremy Perler of RiskMetrics Group will teach the basics of reading financial statements and offer a primer on the three types of financial statements: income statement, balance sheet, and statement of cash flows.

Topics to be discussed include the different components of each financial statement and how they are interrelated, various technical accounting matters attorneys encounter in their practices, and developments in the field.

The course takes place from 6 to 8:15 p.m. at the D.C. Bar Conference Center, 1101 K Street NW, first floor. It is cosponsored by the D.C. Bar Corporation, Finance and Securities Law Section; Criminal Law and Individual Rights Section; Estates, Trusts and Probate Law Section; Family Law Section; Health Law Section; Labor and Employment Law Section; Law Practice Management Section; Litigation Section; and Taxation Section.

For more information, contact the Continuing Legal Education Program at 202-626-3488 or visit www.dcbar.org/cle.

When I blogged about the case, several commenters asked whether the ACLU would get involved. I'm pleased to say that the ACLU just filed a motion to file an amicus brief on our side:

ACLU seeks to participate in this case to urge this Court to reverse the lower court's decision that Appellant's conduct was criminal rather than protected expression under the First Amendment.... As described more fully in the Statement of Interest that will be submitted in the briefing should this motion be granted, the lower court's decision in this action violates the constitutional guarantee of free speech and creates a new, unconstitutional standard to judge such cases.

Now we'll just have to see what the Nebraska Supreme Court does. (Recall that at this point the decision before the court is only about whether to agree to further review the Nebraska Court of Appeals' opinion, not about whether to reverse that opinion on the merits.)

If your brief repeatedly refers to the Secretary of Transportation and mentions no other Secretary, it is silly to specify parenthetically, the first time you mention the Secretary of Transportation, "(hereinafter 'the Secretary')." No one will think that your later references to "the Secretary" denote the Secretary of Defense, or perhaps your own secretary.

This week's National Journal poll of political bloggers asked the bloggers "How serious is each of the following challenges in selling health care reform?" Bloggers of the Left and the Right agreed that "Government-run health care" was the biggest challenge, and that "Too costly" ranked second.

The challenge that I ranked as greatest, "Nothing for the insured," came in last place on the Left, and next-to-last on the Right. My rationale:

"The real problem is that rather than getting 'nothing,' the already-insured will end up worse off, and more and more of them are realizing that. Tens of millions of them will get pushed out of their current private insurance, end up stuck in the public 'option,' and have to live with British/Canadian-style rationing by queue -- in which survival rates for cancer are much lower, people wait for many months for operations, and every doctor-patient transaction is controlled by the government."

Question 2 was "What's the bigger political problem facing President Obama right now?" Seventy-five percent of the Right, and 33% of the Left, thought, "Concerns about his handling of the economy." The majority of the Left voted for "The prospect Congress won't enact health care reform this year."

I voted for the economy, but saw it as linked to health care: "The latter is helping to cause the former. The irresponsible, reckless, pork-filled, wasteful, government-centric deficit spending spree in the so-called 'stimulus' has raised justifiable concerns that a health care system run by the same crowd of people will raise rather than lower costs, and will not be effectively managed."

Democratic legislators are complaining vigorously about the push-back they are receiving on health reform during town hall meetings. House Majority Leader Pelosi stated that reform opponents were “carrying swastikas and symbols like that to a town meeting on healthcare” and dismissed them as “Astroturf” rather than a grassroots movement. An editorial cartoon in the Washington Post similarly suggests that the protests are being orchestrated.

Senator Reid views protesters as a “fringe that is trying to mess up our meetings.” The White House Deputy Chief of Staff has advised legislators if “If you get hit, we will punch back twice as hard.” The Administration is asking individuals who hear things that are “fishy” to submit them by email.
Paul Krugman concedes that anti-privatization activists” who opposed social security reforms during the Bush Administration were “sometimes raucous and rude, [but] I can’t find any examples of congressmen shouted down, congressmen hanged in effigy, congressmen surrounded and followed by taunting crowds." Krugman concludes this is “something new and ugly” – and reforms opponents must be motivated at least in part by racism.

Krugman’s claim that protests of this sort are unprecedented is wrong. A virtually identical scenario played out in 1989. By an overwhelming margin, Congress had enacted the Medicare Catastrophic Coverage Act in 1988. The Act provided more extensive hospitalization benefits and prescription drug coverage, but it imposed the costs of that benefit on the elderly.

Congress was soon flooded with angry letters and there were numerous confrontations with angry constituents when individual congressmen returned to their districts. As Andrea Mitchell observed on ABC News, “the elderly are not against the new benefits – unlimited hospital care, new at-home benefits, prescription drug coverage; they just don’t want to pay for them.”

The turning point came on August 17, 1989, when Dan Rostenkowski, House Ways and Means Chairman and one of the most powerful men in Congress, found himself fleeing a crowd of irate senior citizens protesting the Catastrophic Coverage Act.

Representative Rostenkowski had scheduled a meeting in his home district to hear constituent concerns and speak about the advantages of the Medicare catastrophic coverage act. A crowd of angry senior citizens waved signs protesting the fact they would have to pay more taxes to fund the covered benefit. People shouted “coward,” “recall,” and “impeach” after Representative Rostenkowski refused to speak with them and got in his car. One senior citizen (Leona Kozien) even jumped on the hood of Congressman Rostenkowski’s car to stop him from leaving.

The picture below was taken moments before Ms. Kozien jumped on the hood – she is the women in the rose-colored heart shaped glasses. (The picture appeared in Newsweek and the Chicago Sun Times, and was taken by Tom Cruze)

Representative Rostenkowski got out of the car and ran a block, chased by the crowd. He was then picked up by his car and whisked away. The incident resulted in front page coverage nationwide. The TV news ran footage of Rostenkowski fleeing from his constituents. Rostenkowski reportedly asked his press secretary whether the issue would go away in a few days, and was told “Let me put it this way Congressman. When you die, they will play this clip on television.” Three months later, the Medicare Catastrophic Coverage Act was repealed.

As with today, the media had little sympathy for the protesters. The New York Times editorialized that “there’s little reason to sympathize with the aggrieved affluent elderly,” whose complaints were “short-sighted and narrow-minded.” In the New Republic, one commentator condemned the “selfishness” of the “affluent elderly,” and asked “so long as we continue to provide enormous subsidies to the affluent elderly, why shouldn’t they help pay for the poor of their generation?” (You can read more, and find the sources for the enclosed in chapter four of my book on Medicare.

It is understandable that the Administration and Congressional Democrats are unhappy with push-back to their plans. But, August is proving to be rich in ironies. The Administration of a former teacher of constitutional law is unhappy that individuals are exercising their Constitutional right to petition the government for redress of grievances. The Administration of a former community organizer is complaining about community organizing. Congressional Democrats have long relied on community organizing (and union members), and are suddenly appalled at organized communities.

And, perhaps the richest irony of all -- the organizer of the protest against Rostenkowski was Jan Schakowsky – then Director of the Illinois State Council of Senior Citizens – and currently Democratic representative from the Ninth Congressional District of Illinois, and chief deputy whip to Majority Leader Pelosi. You can read Schakowsky's account of the incident, her role, and her views on the importance of citizen involvement in government here – at a lecture she gave at Northwestern’s Institute for Policy Research in 2002, entitled “Why Citizen Activism Matters: The View From Washington.”

In Kazemzadeh v. U.S. Attorney General (11th Cir. Aug. 6), Kazemzadeh — an Iranian citizen — claimed asylum because he had converted to Christianity, and said he faced persecution in Iran. The Board of Immigration Appeals rejected the claim, largely because it concluded that Iranian persecution of converts away from Islam was in fact very rare (though in theory apostasy could carry the death penalty). The panel reversed, on the grounds that "the Board did not consider whether enforcement is rare because apostates practice underground and suffer instead that form of persecution to avoid detection and punishment." And being forced to practice underground, the panel concluded, is itself a form of persecution.

What is particularly interesting to me, though, isn't that legal question (on which I think the panel was correct), but the broader policy issue raised by the risk that many people might pretend to convert in order to stay in the U.S. The majority stressed that there was no finding that Kazemzadeh was insincere, but the dissenting judge pointed out that there was a dispute about his sincerity, and that the Board needs to consider it:

In this case, although the Immigration Judge never directly addressed the issue of credibility, she commented throughout her order on the numerous questionable aspects of Kazemzadeh’s religious conversion. First, she stated that his “inability to explain what communion is ... seemed inconsistent with any significant involvement with the religion” since communion is a “central aspect of Christianity.” She also noted that he attended weekly Bible classes less than once per month, and opined that he should be making “the effort to attend as many of those classes as possible in order to learn a religion for which he alleges that he’s willing to risk his life.” After noting that Kazemzadeh decided to become a Christian approximately two months after he began attending church, the Immigration Judge stated that “it was[] [not] clear how much he knew in those two months that [led] him to make a life-time commitment that would put him at odds with his family and with his country.” She also pointed out factual inconsistencies between Kazemzadeh’s testimony and that of his pastor, and she expressed suspicion about the authenticity of documents he provided as evidence of his conviction and his expulsion from the university he attended in Iran. Finally, in her conclusion, the Immigration Judge noted that the swiftness of Kazemzadeh’s acceptance of Christianity “does not evidence a lifetime commitment.”

And whether or not Kazemzadeh is sincere, there does seem to me to be a serious risk that the availability of asylum for Iranian converts away from Christianity will lead some people to pretend to become Christians. The right to live and (in several months) work in the United States is a very valuable benefit, even if it means that one can never safely return to one's home country.

I'm sure that really devout Muslims won't pretend to abandon their faith just for that benefit — but I take it that quite a few people who have already fallen away from the faith might well claim to accept Christianity in order to get something this valuable. We know, for instance, that it's not unusual for people to convert to a different religion in order to get married; I suspect that quite a few of them aren't really motivated by genuine belief in their new religion, though I take it that most of them must not be that committed to their old religion. I would think that quite a few people would likewise convert to get the right to live and work in America.

On top of that, I expect that telling a genuine convert to Christianity from a fake convert is not that easy, and might itself pose substantial problems. A judge could grill the person on theology (consider Kazemzadeh's inability to explain what communion is), but lots of people sincerely believe without much real grasp of theology, and lots of people can learn the theology (especially if they know they'll be grilled on it) without much belief. Frequency of weekly Bible classes is also a poor proxy for sincerity, especially since different sincere Christians attach different levels of importance on knowing the details of the Bible as opposed to a big picture understanding; and, of course, someone could learn the Bible without taking weekly Bible classes. (Also, unless I'm mistaken, individual reading of the Bible has long been more of a Protestant religious commitment rather than a Catholic one.)

The speed of conversion is also not terribly telling, at least in a faith-centered model such as Christianity. Certainly conversion flowing from a perception that one has "seen the light" and heard God's word is firmly entrenched as permissible in Christian theology (consider Paul on the road to Damascus); and I suspect that at least some people do indeed accept a new religion this way. Some people may choose a religion based on a long and deep course of study, but that needn't be all sincere converts' approach to religiosity.

On top of that, as I understand the panel decision, there's not much beyond simply the statement of conversion that's required for an asylum claim. Quite sensibly, the panel doesn't require that one actually return and face persecution. The panel does suggest that Kazemzadeh's case is particularly strong because there's evidence that the regime has already taken an interest him and might therefore learn of his religion; but I don't read that as a necessary condition, given the logic of the majority opinion and the conclusion that having to worship underground is itself a form of religious prosecution. Again, I'm not saying that the panel should have required more evidence of likely future persecution. But given the panel decision, there doesn't seem to be much constraint on false claims of conversion other than the asylum-seeker's individual conscience and the immigration judge's imperfect ability to tell who has really become a Christian.

In principle, this risk of false claims is present in many other contexts, such as religious exemptions from generally applicable laws. But since the abolition of the draft, relatively few of the benefits that one can get from the exemption are nearly as valuable as the benefit of being able to live and work in America. Few people will pretend to be Muslim just to get an exemption from a no-beard rule. A few more people might pretend to be observantly Jewish to get Saturdays off, when such an exemption is available. But I suspect that the incentive to pretend a conversion to Christianity in order to get to live in America rather than as a Muslim in Iran is for many people far greater, and the risk of false claims is therefore far higher.

So we have a substantial risk of false conversions. And we have a huge benefit being given to Iranians (and likely citizens of some other Muslim countries) who become Christian that is not given to Iranians who stay Muslim. Of course, this benefit is a consequence of Iran's discrimination against converts, not any deliberate American statutory decision to prefer Christians over Muslims. But this sort of benefit that is given only to those who convert to Christianity — and the result incentive to convert — is nonetheless the sort of thing that American law normally tries to avoid, even if the benefit could sometimes be limited solely to sincere converts and not fraudulent ones.

At the same time, there is very good reason to protect people from religious persecution, and doubtless many Iranians do sincerely convert to Christianity and thus deserve our protection. A policy of rejecting the claims of converts, simply because of the risk of false conversion and a desire to avoid giving people an incentive to convert, would pose serious problems of its own.

My point is simply that the Eleventh Circuit decision might lead to there being a lot of false positives, especially once it's publicized — and a lot of pressure to convert, or at least to claim conversion. How the law should deal with this risk is a difficult question; but it struck me as worth raising.

(I set aside Kazemzadeh political asylum claim, which was rejected both by the Board of Immigration Appeals and the Eleventh Circuit panel. I also set aside the possible arguments for broader immigration regardless of asylum status. One could, for instance, argue that all Iranians deserve asylum in the U.S., just as all Soviet immigrants — like my family — were given asylum. And one could generally argue that we should have presumptively open borders. But my post here operates against the current legal scheme under which most Iranians aren't entitled to come to the U.S. to live and work, unless they really are facing a risk of persecution at home. Finally, thanks to How Appealing for the pointer.)

Instead of yellin' and shoutin', how about pressing your Representative for the following commitment: you will not vote for any final health care bill until its been published on-line and available to the public for debate (and for you to read!) for at least one month. I'd love to see a Congressman try to explain to his constituents why having time for public debate is a bad idea.

The Cato Institute's David Rittgers explains one of the more disturbing aspects of the new federal "hate crimes" law passed by Congress.

States and the federal government are considered separate sovereigns. If someone has broken both state and federal laws, he can have a day in court in both systems. . . . A trial by a state does not rule out federal prosecution for the same crime, and this does threaten to thwart the Fifth Amendment’s demand that no person suffer double jeopardy. In practice, however, this hasn’t happened too often; until now, limited federal jurisdiction meant that Uncle Sam usually didn’t have the ability to try or retry a state defendant.

That’s what makes the new hate-crime law so remarkable. Its defining feature is not that it allows federal prosecution of crimes motivated by the race, gender, sexual orientation, or disability of the victim. What’s significant is that it greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.

In legal terms, this law achieves its aims through federal authority over interstate commerce. If someone assaults you by throwing a cell phone at you, what Congress has done is enabled the prosecution of the thrower as a function of the fact that the cell phone was made in Japan, and therefore must have crossed state lines. To non-lawyers, that surely sounds absurd — which is precisely why this law’s drastic overreach is so stark. This is a sea change in the power of the government to reach into a state and define violence between two people as a federal matter, one traditionally handled by state laws and state prosecutors.

An equally striking feature of the law is that the federal power to prosecute is not dissipated even if the defendant is found guilty by the state. It explicitly says, in fact, that federal charges should be pursued if the state verdict “left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence.”

Thus, the bill simultaneously expands federal jurisdiction to cover yet more criminal offenses traditionally handled at the state and local level and encourages reprosecution if a state verdict is insufficiently harsh to satisfy federal prosecutors.

Law schools typically used to require a basic one semester class - often pass-fail - on accounting for lawyers. I took it, then concluded I needed something more advanced outside of the law school curriculum. But at a minimum, the accounting for lawyers class, while not requiring much in the way of actual accounting, introduced lawyers to the vocabulary and concepts of accounting. Somewhere along the way, twenty five or thirty years ago, the requirement was downgraded so that it became merely another upper level elective.

As time has gone on, I am increasingly convinced that was an unwise demotion - and not simply because I teach business law. You can't read the front page of the Times or the Post these days without having a good chance of encountering the words "balance sheet." Very often the term is being used in an extended policy sense - referring, for example, to the balance sheet of the Fed or even the US government. Unless my law students have had some undergraduate class in the subject, typically they would not have the faintest idea what that meant or why - even in a largely metaphorical sense (e.g., when the Economist magazine talks about the world's balance sheet) - it is a relevant or important or meaningful way to express certain ideas. Leave aside the numbers, they simply have no idea what the vocabulary or underlying concepts are.

Ironically, when I was in law school, one of the reasons the class was demoted was not that the non-business oriented faculty dissed it. On the contrary, the corporate finance professors did not think it was important - pooh-poohing it as merely pointless recitation of historical events represented on the financials. They (we, let's be honest) had fallen in love with the idea that accounting was a wall-flower at the finance dance compared to the new beauty, discounted/anticipated future cash flows and valuations based around market proxies themselves premised around efficient market theory. We weren't wrong about future cash flows, but we now have a better understanding that accounting provides the framework against which one can work out one's notions of the future and appropriate discounts.

For that matter, I suspect that the fact that lawyers did not even know the vocabulary contributed to such things as Enron, in which there was a marked tendency of the lawyers to say that it was an accounting problem and they had no basis for knowing or inquiring about it. And then for the accountants to say it was a legal problem. (Of course, this has always been a standard little dance by law firms and accounting firms debating over who would opine about what in securities transactions, but it took a whole turn for the worse once the two no longer shared much idea of what the other did.) It would be easier to expect regulatory due diligence by the lawyers, even to ask for a layman's version of complex accounting structures, if the lawyers had some idea of what the basic terms of accounting are.

Many of my students have no interest in corporate law as such, but many of them hope to become civil or white collar criminal litigators, or regulatory lawyers inside or outside government. It is simply wrong to think that they do not need to understand the basic vocabulary and concepts of accounting to be able to be effective lawyers in those fields. And my experience of younger practicing lawyers is that they are so busy with billed hours and the training programs of law firms so reduced that they don't learn these concepts on the job anymore. (There is actually a greater rather than lesser burden on law schools to prepare students for practice these days, because the days are gone when a school - particularly the best ones - could assume that practice would do it for them.)

Uninitiated law students often believe that accounting is merely about counting things and sticking them in predetermined categories. In fact accounting is a rich intellectual endeavor in which the determination of what categories matter and why, and how one should interpret this item of income or whatever as going in this or that category - whether it presents an accurate representation of an enterprise - is as much interpretation and nuance and all that as law. It is as much about a deep representation of the world as law is. (I started out in tax law, and rapidly grew to have deep respect for tax accounting's intellectual enteprise.) Much of my practical work is with nonprofit organizations, and seeing how difficult the fundamental categories of nonprofit accounting are, both to adapt for-profit accounting categories to nonprofits and how to conceive of the categories in the first place, has given me a very deep appreciation of how much the intellectual interpretive activities of law and accounting share.

But does it require a required law school class? Law schools often these days have much grade inflation or, more precisely, grade compression against a maximum top grad. Any bad grade (resulting, for example, from taking an important, interesting class for which you have no prior background) can clobber your job opportunities. In my experience, and not just my school, I'd say any form of C is death, and my students look on a B- as pretty much death - I routinely field complaints telling me that a B+ will bring down their GPA. One of the considerable downsides of that form of grade inflation is to disincentivate a student from taking any class for which they cannot predict a minimum of B+ or A-, and it gives students a large incentive to focus on classes for which they already have a leg up from undergrad.

Whereas it is precisely the students without any background who most need exposure to it. There is nothing special about accounting for lawyers in that, but if you think it is as important as I've suggested here (and even understanding that every professor will enter special pleadings for his or her speciality as deserving to be required), yes, I think it was a mistake to let it slip from the 'required' category.

Roger Kimball (via Instapundit) properly mocks Krugman's claim that angry opposition to the Democrats' health care "reforms" is a product of racism. But Krugman also includes a logical fallacy, to wit:

There was a telling incident at a town hall held by Representative Gene Green, D-Tex. An activist turned to his fellow attendees and asked if they "oppose any form of socialized or government-run health care." Nearly all did. Then Representative Green asked how many of those present were on Medicare. Almost half raised their hands.

This would only be telling if Green had asked, "how many of you would prefer if Medicare were not run by the government?" Otherwise, it's the equivalent of going to a room full of radical libertarians and asking, "how many of you are opposed to government owning and operating roads?" Everyone raises his hand. "Okay, how many of you use the roads?" It's not like if you're of Medicare age, you have some sort of feasible way of opting out of the government-run health care system.

Although we don't know the views of the seniors singled out by Krugman, there are undoubtedly many seniors who want to keep their Medicare benefits and also oppose further government involvement in the private part of the health care system. And why not? Currently, they get heavily-subsidized care, and as much of it as they want, with no rationing, and "wasteful" private insurance helps subsidize the training of their doctors and medical innovations that will prolong or improve their lives. Pundits are finally starting to notice something that was obvious to me from the start: the Democrats' plans are not just an assault on the private part of the current health care system, but on Medicare as well. Medicare desperately needs an overhaul, but I don't see the Democrats expending the huge amount of political capital it would take to persuade seniors of that. Instead, having defanged the AARP, they seem to have hoped nobody would notice. But after two decades of the Democrats sensitizing seniors to the slightest "threat" to Medicare, the better to get reelected, the Democrats aren't going to fool politically active seniors so easily.

[Comments open for four hours]

UPDATE: Commenter Thorley Winston adds: I can think of at least four reasons why seniors on Medicare would oppose Obamacare:

The proposal to cut reimbursement rates even further means that more doctors won’t take Medicare or Obamacare patients.

Destroying or severely reducing the private health insurance markets ends the subsidy for Medicare patients which means that they can expect to pay more, receive less, or both.

Right now there is at least some commonality in Medicare patients due to their age even if they have some variations in their medical needs and wants which gives them a disproportionate amount of clout when it comes to protecting their subsidy. If they get lumped in through Obamacare with younger and presumably healthier patients, they risk forming a countervailing coalition of subsidy recipients with competing needs and wants which threatens the ability of seniors to get what they want.

Younger seniors especially can still benefit from new innovations in medical technology which are one of the primary cost-drivers in our health care system. Slowing the innovation and adoption of new medical technology ("supply rationing") is one of the easiest ways of slowing the rate of growth of health care costs because to paraphrase Obama health care advisor Gregory Bloche "people don't complain if they don’t get new treatments that haven’t been invented yet."

Does a homeowner's live-in boyfriend or girlfriend have the "apparent authority" to consent to a warrantless search of the property? What if the live-in boyfriend/girlfriend had no key and had shown up at the police station the morning of the search claiming to have been "thrown out" of the house? Would it matter if the police knew the relationship had gone on for several years and was particularly turbulent (i.e. on-again, off-again, with repeated domestic violence calls to the police)?

United States v. Penney, decided today by a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, raises these questions, and more. This area's not my specialty, but I'm inclined to side with the dissent. It seems to me the police had ample reason to question the homeowner's girlfriend's apparent authority. I would also think they could have obtained a search warrant had she been as willing to report on her lover's activities as she was to lead the police through the home.

With the Senate’s approval of Judge Sonia Sotomayor's nomination to the Supreme Court on Thursday, the new justice will soon take on one of the most demanding jobs in the land.

Let's see. Each Justice has to write eight or nine opinions a year, plus several dissents or concurrences, with the assistance of four law clerks. While doing so, they manage to write books, lecture, and take the Summer off. Justice Thomas travels the country in his Winnebago. Other Justices have cushy lecturing jobs in Europe. Some elderly Justices almost literally have to be carried out of the Court when they die or become mentally incompetent, because the job is so "demanding." It's hard to see how an 89 year old Justice Stevens could keep up if he had the "one of the most demanding jobs in the land."

Powerful? Yes. Intellectually challenging? Yes. Stressful? It would stress me out to have to decide, e.g., whether abortion would be legal, but the Justices seem to cope a lot better than I would, and they do have a lifetime job and no boss, which eliminates two major sources of stress for many people. Among the most demanding in the land? Hardly. My impression is that many lower court federal judges work much harder year-round than the average Supreme Court Justice.

The movies of John Hughes helped define a generation. I can still recite much of the dialog from "The Breakfast Club" and Ferris Bueller's Day Off" from memory (much to the chagrin of my family). He may have only directed eight films, but he wrote over three dozen. No longer. John Hughes died Thursday of a heart attack. He was 59.

Thursday, August 6, 2009

Something to keep in mind next time your hear about "civilian" casualties in a conflict between Israel and Hezbollah (whether from the past, or in the future): "'War will definitely come,' said Hussam, a 33-year-old fighter who joined Hezbollah in 1987 as a[n eleven year-old] scout." Unfortunately, all too many "eleven year old scouts" become "civilian martyrs" when they are killed along with their adult recruiters.

[UPDATE: And such individuals, along with people who volunteer their homes for use as weapons depots, mentally challenged people recruited for suicide missions, and others who are combatants but aren't official armed militia, probably account for a decent fraction of the difference in "civilian" casualty counts put forward by Israel and Hezbollah].

Is Sarah Palin America's Mahmoud Ahmadinejad? The two differ in many key respects, of course, but it is remarkable how similar they are. There are uncanny parallels in their biographies, their domestic politics and the way they present themselves — even in their rocky relationships with party elders.

Both are former governors of a northwest frontier state with great natural beauty (in Ahmadinejad's case, Ardabil). Both are known for saying things that produce a classic Scooby-Doo double take in their audiences. Both appeal to a sort of wounded nationalism, speaking of the sacrifice of dedicated troops for an often feckless public, and identifying themselves with the common soldier. They are vigilant against foreign designs on their countries and insist on energy and other independence.

But above all, both are populists who claim to represent the little people against wily and unscrupulous elites, and against pampered upper-middle-class yuppies pretending to be the voice of democracy. Together, they tell us something about dangerous competing populisms in an age of globalization.

Right-wing populism, rooted in the religion, culture and aspirations of the lower middle class, is often caricatured as insane by its critics. That judgment is unfair. But it is true that such movements often encourage a political style of exhibitionism, disregard for the facts as understood by the mainstream media, and exaltation of the values of people who feel themselves marginalized by the political system. Not all forms of protest, however, are healthy, even if the protesters have legitimate grievances. Right-wing populism is centered on a theory of media conspiracy, a "my country right or wrong" chauvinism, a fascination with an armed citizenry, an intolerance of dissent and a willingness to declare political opponents mere terrorists. It is cavalier in its disregard of elementary facts and arrogant about the self-evident rightness of its religious and political doctrines. It therefore holds dangers both for the country in which it grows up and for the international community. Palin is polling well at the moment against other Republican front-runners such as Mitt Romney, and so, astonishingly, is a plausible future president. At least Iranians only got Ahmadinejad because of rigged elections, and they had the decency to mount massive protests against the result.

FWIW, I can't say I follow Sarah Palin closely, but every time I hear her quoted, it's about big government, socialism, bureaucracy, etc. If she's basing her politics on religion, it's not very explicit, though she personal beliefs and actions obviously appeal to evangelicals who share similar beliefs and admire her actions (like not aborting Trig).

That's what State v. Hynes, decided by the New Hampshire Supreme Court yesterday, basically holds.

N.H. Rev. Stat. Ann. § 637.5 provides, in relevant part, that "A person is guilty of theft" if he gets money by threatening to do any "act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships." Of course, threatening to file a well-founded lawsuit unless one is paid a settlement is quite legal, and generally properly so. Under the statute, that would be a threat to do an act which would in itself substantially benefit the threatener. But, the court held, a baseless lawsuit would not in itself provide a substantial benefit to the plaintiff, so threatening such a lawsuit in order to get a settlement is extortion.

The court did not discuss what mental state the plaintiff would have to have to be punished, since the defendant didn't preserve the issue for appeal. But I take it that under general criminal law principles, the plaintiff would have to know that the lawsuit was baseless, or at least to know that there was a substantial and unjustifiable risk that the lawsuit was baseless.

Here, by the way, is the court's summary of the facts that the jury could have found in convicting the defendant:

The defendant is an attorney who was admitted to the New Hampshire and Massachusetts Bars in 2006. In December of that year, he sent a “Cease and Desist/Demand Letter” to Claudia Lambert, the owner of Claudia’s Signature Salon in Concord (the salon). The letter, written on “Daniel P. Hynes Esq.” letterhead and noting his admission to the New Hampshire Bar, stated:

I am writing in regards to your company’s policy of pricing for different types of haircuts. It has been brought to my attention that your business charges $25 for haircuts but $18 for a Men’s cut and $12 for a children [sic] haircut. Such a distinction in price based on gender and age is discrimination in violation of the law. Accordingly, I demand you immediately cease this unfair pricing and charge customers in a more appropriate manner, such as by the length of their hair or the amount of time it would take.

The letter claimed that the salon’s practice was both unlawfully discriminatory in violation of RSA 354-A:17 (2009), and constituted an unfair trade practice in violation of RSA chapter 358-A (2009). The letter went on to state:

I demand that you immediately cease your unlawful practice of charging for haircuts based upon age and gender. Should you not comply I will be forced to file a complaint with the State Commission for Human Rights while reserving all rights to remove and file in Superior Court. In addition, I demand payment in the amount of $1000 in order to avoid litigation .... I believe $1000 is a fair amount as it is the minimum that would be awarded for an unfair trade practice alone. You have ten (10) days to comply .... Should you fail to comply additional steps will be taken including filing with the State Commission for Human Rights and potential removal to Superior Court. If such action is necessary I will seek all remedies available including but not limited to an injunction, damages for discrimination, damages for the unfair trade practice, ill-gotten gains, punitive damages, attorney fees and costs. If you object or otherwise wish to discuss the above matter you may have your attorney contact me.

The court concluded that the threatened lawsuit would have been baseless, chiefly because the relevant statutes would not have provided Hynes with a cause of action, since defendant "lacked a client and did not personally patronize the salon" and therefore didn't have standing to challenge the discrimination. A dissenting judge disagreed, concluding that "the defendant could have realistically believed that he had standing," because

[T]here is at least some suggestion in our jurisprudence, albeit in the context of employment discrimination, that to bring this type of claim, a person need not actually sustain an injury as a result of a discriminatory practice. While I agree with the majority that our employment discrimination cases can be distinguished from the instant case, the fact remains that, until today, we have not distinguished them.

Mother's and Child's Moving Back from Saudi Arabia, and Child Custody:

An interesting trial court opinion I just ran across, though it was decided in May 2006. [UPDATE: Link fixed.] It doesn't break any new legal ground, but it does provide an interesting perspective, I think, on a particular kind of problem, and how some courts approach it. From the facts:

1. Plaintiff is C__ C. Al-R__, an adult citizen of Pennsylvania and the United States of America, residing in Millville, Columbia County, Pennsylvania.

3. The parties met while they were students at the University of Scranton in Scranton, Pennsylvania. Plaintiff graduated from the University of Scranton with a Bachelor of Science degree in May of 2000 and received a Master of Science in School Counseling degree in May 2003.

4. The parties were married on August 28, 2001, in Honesdale, Wayne County, Pennsylvania, in an Islamic ceremony. She had converted to Islam by accepting the five basic precepts of the Islamic religion prior to the marriage. She never converted to “cultural” Islam as it is observed in Saudi Arabia.

5. While living in Pennsylvania, plaintiff became pregnant with the parties' child. Defendant wanted to move to Saudi Arabia to live and raise the child. Plaintiff was reluctant but agreed to relocate on a trial basis. She did some superficial research on what life would be like for her and her family in Saudi Arabia. Defendant did not fully disclose to her what life was like for women in Saudi Arabian culture, although he fully knew or should have fully known the difference since he had lived in both cultures for significant periods of time. Plaintiff had never lived in the Saudi culture.

6. Defendant knew that plaintiff was a strong-willed woman who would have a difficult time adapting to a controlling Saudi male dominated culture....

8. While in Syria [on the way to Saudi Arabia] and after moving to Saudi Arabia, plaintiff found that life for women, and for her specifically, was brutal, something that defendant apparently did not disclose. Plaintiff attempted in good faith to adhere to the cultural dress codes and the mores of Saudi society. However, she was not prepared for the abusive treatment, physically and psychologically, inflicted upon women in that society.

9. Specifically, defendant repeatedly abused plaintiff in many ways for over a year.... [Details available in the full opinion. -EV]

12. Any employment which she could secure in Saudi Arabia had to be arranged by defendant, who became extremely controlling....

13. In accord with Saudi custom, a divorce will occur if the husband says “I divorce you” three times. While they were in Saudi Arabia, he said it two times. If it had happened a third time, plaintiff would have had no one to help her since she could not talk to men outside of the family and women were powerless to help. Thus, she would have had to go to the U.S. Embassy and return to the United States without her daughter.

14. In the spring of 2005 she began to feel depressed and isolated. She saw a counselor. The only advice she received was to pray and to be more accommodating to her husband.

15. In August of 2005, plaintiff persuaded defendant to permit her and the minor child to visit her family in Pennsylvania. Defendant bought round-trip tickets for plaintiff and the child. Before they left Saudi Arabia, defendant made plaintiff write down the names of her family members. He told her that if she did not return, he had connections in the United States and he would harm her and her family. He also stated that he would rather see their daughter “dead” than raised in the United States. He told the minor child, “May God help you if you become a prostitute and a bitch like your mother.”

16. Plaintiff visited Pennsylvania with Sarah. However, she failed to get on the plane and return to Saudi Arabia as scheduled on August 28 or 29, 2005. She had called defendant and said she was not returning, using the excuse that a relative was ill. She also told defendant that she was fearful of returning. However, she simply decided that she could not live in Saudi Arabia. She did not want her and her daughter to be forever subjected to the abuse she had experienced.

17. Before she left, she expressed her love for defendant. After she failed to return, she continued to express her love for defendant. However, said expressions of love were for the man she knew in the United States, not for the man she lived with in Saudi Arabia. Her expressions of love were based in fear and were not genuine. She was afraid that if her true feelings of fear were expressed, not only would she not have been allowed to leave Saudi Arabia, but she would have been in danger in the United States.

18. When plaintiff did not return to Saudi Arabia in August 2005, defendant knew or should have known that she would not return. He had lived in the United States long enough to be aware of the cultural differences. He knew or should have known that the abuses that he heaped upon plaintiff in Saudi Arabia would not be accepted by such a strong and educated American woman as his wife. He knew or should have known that he had deceived her by not fully explaining the control and abuse that she would have to endure in Saudi Arabia. He threatened her and her family with harm if she did not return. He knew that when she did not return that she would never return to his extreme abuse and viciousness.

19. Plaintiff established a residence in the United States and in Pennsylvania by the end of August 2005. She purchased a car in August 2005. She rented an apartment for herself and her daughter in August 2005. She secured a job in Pennsylvania in August 2005....

20. Plaintiff and defendant communicated by e-mail through December 2005, when all communication ended.

21. Plaintiff filed the complaint in divorce and custody on March 8, 2006.

22. On March 8, 2006, Pennsylvania had been the home state of plaintiff and Sarah for at least six months....

As I understand it, the purely legal issue is whether the wife lived with the daughter in Pennsylvania starting August 31, or was simply visiting there, for at least a couple of weeks. But the answer, according to the court, seems to turn quite substantially on the nature of the problems that the wife was facing in Saudi Arabia, and on the husband's responsibility for the problems — apparently since that bears on the legally significant question of whether the mother intended to establish residency in Pennsylvania, and perhaps whether the father should have recognized that intent. (Note the finding that "When plaintiff did not return to Saudi Arabia in August 2005, defendant knew or should have known that she would not return.")

Likewise, the court's conclusion that the plaintiff didn't engage in "unjustifiable conduct" (which would have statutorily stripped the court of jurisdiction) seems influenced by the situation the wife faced in Saudi Arabia, and the husband's possible responsibility for that situation. In any case, you can read the whole opinion for more on this.

First, joining the Convention makes sense in a conventional national interests analysis. America’s failure to join will cost it more than signing on. There is already a drumbeat on the subject: US nonparticipation is a boilerplate punchline among international actors critiquing US human rights practice. That doesn’t present a direct harm to US national security (in, say, the way that Guantanamo has), but it nibbles away at the national interest. Given the small cost of participation (especially as conditioned by some reasonable package of reservations and understandings), ratifying the treaty looks the preferred, rational choice.

But even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice. Eugene assumes that the US can say no to the CRC, that America can insulate itself from universal international practice (to anticipate Ken’s objection here, universal at some core discursive level even if many other countries have attached significant reservations to their ratification). I don’t think so. There are too many entry points for international law, including through state governments, nonstate actors, and the courts.

Take the CRC provision barring life sentences for juvenile offenders, among those which Eugene finds objectionable. I’d be willing to make a small bet that within the next 20-25 years that practice is halted in the US, whether or not we formally join the CRC. It might be the courts that put a stop to it, a la Roper. It might be state governments that come around on their own, in the face of ramped-up international static. Nonstate actors (including academics) will be a part of the picture. In any event, the international norm will be a driver. That is, the fact that international law has moved to ban the practice will be consequential, policy aspects of the question aside. That’s something that international law skeptics have trouble understanding: the material power of international law.

Now, as I argued in my original post, I find the "foreigners dislike us for our not signing the Convention" argument to be unpersuasive. In principle, I'm fine with doing (cheap) things to produce foreign goodwill that might eventually translate into material benefit for us. I'm just skeptical that the sorts of "international actors critiquing US human rights practice" to whom our nonparticipation in the Convention is "a boiler punchline" will really change their views about us if we ratify in the Convention; and I'm also skeptical (though more tentatively) that those listening to them will change their views about us.

But Prof. Spiro's post also identifies -- perhaps inadvertently -- why signing the Convention might not be cheap. Displeased as I am with the Convention, I'm much more hostile to other aspects of "international practice," such as the norm that governments must suppress so-called "hate speech," the norm of not protecting an individual right to bear arms, and the norm that governments must suppress certain kinds of anti-religious speech (a norm that is not yet entrenched but that some are trying to create). Yet Prof. Spiro has long argued that such norms are likely to insinuate themselves into American constitutional law, even to the point of leading courts to take a more restrictive view of the First Amendment. And even in the post I quote above, Prof. Spiro has likewise argued that foreign norms are likely to insinuate themselves into American law, even if we don't ratify the Convention.

What can people like me, who like American free speech rules, American right to bear arms rules, and the like do to prevent such erosions of our rights? Well, note that Prof. Spiro's claim that "even if we don’t sign on, the convention’s substantive terms will insinuate themselves into US practice" isn't a matter of some ineluctable physical law. Rather, it's an artifact of domestic opinion. "International practice" is influential to the extent that it has a high reputation among American decisionmakers, perhaps because they see Americans generally as approving of the influence of international practice. It is much less influential if it is broadly condemned as illegitimate by Americans.

If we accept that we should conform with "international practice," then we'll conform; or if our presumption with regard to "international static" is to change our understanding of human rights and proper legal rules, then we'll change them. But if we broadly adopt a view that our rights are a matter for us, and that we should bristle at foreign attempts to impose foreign "practice" rather than feeling cowed by such attempts, then our legal rules are more likely to be preserved in the state that we as Americans would like them to be without regard to foreign pressure.

Now one possible reaction, of course, might be to pick and choose -- to subscribe to those treaties that we like but not the ones we dislike, to take seriously "international practice" arguments but to reject those we disapprove of, and so on. But as I read Prof. Spiro's argument, such a nuanced response will fail: Even if we consider a proposed treaty and reject it, its "substantive terms will insinuate themselves into US practice" despite our rejection. That's true as to the Convention on the Rights of the Child. It would presumably be similarly true as to international conventions that demand the punishment of so-called "hate speech," or of harsh criticism of religions. We can try to pick and choose, but those that we've chosen to reject will still "insinuate themselves" into our law.

It seems then that the one reaction that will most diminish the chance of rejected rules' "insinuat[ing] themselves" is a thoroughgoing condemnation of the influence of the relevance of international practice, and of the legitimacy of allowing such practice to influence our practice. If case-by-case attention to international norms won't be enough to block those norms that we rejected, then it seems to me that only a broad hostility to international norms will suffice.

So if Prof. Spiro is right about the power of rejected treaties to "insinuate themselves" -- a big "if," I realize -- then I think those of us who deeply oppose some international norms (I mention again the norm of compulsory suppression of so-called "hate speech") need to reject many treaties simply for the sake of rejecting the treaties, so at to better create a culture in which international norms have the least chance of insinuating themselves. Every such treaty that's rejected will help reinforce the protection that our law offers to the independence of our own domestic legal tradition.

To be sure, such rejectionism may sometimes be too costly. If we have something serious and likely to gain from accepting a particular treaty, we should be open to that benefit. But we should recognize that there's always a cost, even of a treaty whose terms are by themselves unobjectionable: the risk that endorsing such treaties (and especially "human rights" treaties) will promote a legal culture supporting the erosion of American legal principles that go against "international practice."

(Of course, to the extent that some people find that they agree more with the "human rights" norms of Europeans than of Americans, they may welcome the replacement of American human rights norms in America with more European norms. I write this post, though, from the perspective of someone who prefers American human rights norms, imperfect as they are, over European norms, and who wants to maximize American flexibility to maintain those norms.)

If you're really interested in Islamic law and the law of the Muslim world, check out the Social Science Research Network forthcoming article database on the subject. Plus you can subscribe to the abstract distribution service, I believe for free. (My understanding is that the SSRN makes money from universities that pay for the right to post their faculty papers to various SSRN series, and not from readers.)

I've just printed out the Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration paper and the Honor Killings and Cultural Defense (with a Special Focus on Germany) paper, and look forward to reading them.

Perhaps because the poster is ultimately a racially charged image. By using the "urban" makeup of the Heath Ledger Joker, instead of the urbane makeup of the Jack Nicholson character, the poster connects Obama to something many of his detractors fear but can't openly discuss. He is black and he is identified with the inner city, a source of political instability in the 1960s and '70s, and a lingering bogeyman in political consciousness despite falling crime rates.

The Joker's makeup in "Dark Knight" -- the latest film in a long franchise that dramatizes fear of the urban world -- emphasized the wounded nature of the villain, the sense that he was both a product and source of violence. Although Ledger was white, and the Joker is white, this equation of the wounded and the wounding mirrors basic racial typology in America. Urban blacks -- the thinking goes -- don't just live in dangerous neighborhoods, they carry that danger with them like a virus. Scientific studies, which demonstrate the social consequences of living in neighborhoods with high rates of crime, get processed and misinterpreted in the popular unconscious, underscoring the idea. Violence breeds violence.

It is an ugly idea, operating covertly in that gray area that is always supposed to be opened up to honest examination whenever America has one of its "we need to talk this through" episodes. But it lingers, unspoken but powerful, leaving all too many people with the sense that exposure to crime creates an ineluctable propensity to crime.

Superimpose that idea, through the Joker's makeup, onto Obama's face, and you have subtly coded, highly effective racial and political argument. Forget socialism, this poster is another attempt to accomplish an association between Obama and the unpredictable, seeming danger of urban life. It is another effort to establish what failed to jell in the debate about Obama's association with Chicago radical William Ayers and the controversy over the racially charged sermons of the Rev. Jeremiah Wright.

Obama, like the Joker and like the racial stereotype of the black man, carries within him an unknowable, volatile and dangerous marker of urban violence, which could erupt at any time. The charge of socialism is secondary to the basic message that Obama can't be trusted, not because he is a politician, but because he's black.

Also, if we're looking for supposed racial connections here, wouldn't the Socialism reference cut the other way? Karl Marx, François Mitterand, Bernie Sanders, no? Or does even Socialism (which to Americans is mostly a European phenomenon, with pockets of support among mostly white prominent American liberal academics) still become black when coupled with the Joker -- who is white but of course black because he's urban and a criminal?

Why are you guys trying to stuff a health care bill down our throat in three or four weeks when the President took six months to pick out a dog for his kids? -- Unidentified tea partier to Steny Hoyer. (H/T Hot Air via Instapundit).

From the homeland of Franz Kafka, evidence that modern litigation dragging on forever is not just an American phenomenon:

[I]n the early days of the Velvet Revolution, in November 1989, three students of architecture described their Communist professor as an arrogant careerist and demagogue.... [I]n 1991 [the professor] took the students to court for defamation of character, and demanded an apology. They refused.

Eighteen years later, and the case is still languishing in the Czech courts. On Tuesday the Constitutional Court in Brno heard its third complaint in the case, and for the third time ruled in the students’ favour.... The lower court will now resume hearing the case....

The Senate is scheduled to vote on the nomination of Sonia Sotomayor to the Supreme Court today at 3pm. It looks like there will be just shy of 70 votes in favor of her confirmation. Back in June I wrote:

If I had to make a prediction, I'd guess that the vote will actually occur just after the August recess, and that somewhere around 75 Senators will vote in favor of Judge Sotomayor's confirmation.

I overestimated the number of Republicans who would end up voting in her favor, as well as their ability to make the case for a slight delay. But you were warned the prediction was "worth about as much as the paper it's printed on." Other folks' predictions are here.

UPDATE: According to Ed Whelan, 31 Republican Senators have announced their intention to vote against Judge Sotomayor's confirmation; 8 Republicans (Alexander, Bond, Collins, Graham, Gregg, Lugar, Martinez, and Snowe) have said they will vote in favor; 1 Republican (Voinovich) is undeclared. Given that it is unlikely Senators Byrd and Kennedy will be able to vote, this means the final tally should be 67-31 or 66-32.

Only a few years ago, a Supreme Court nominee like Judge Sonia Sotomayor could expect quick, nearly unanimous confirmation. She is, after all, a long-serving appellate court judge who has also served on the district court bench, and she is qualified for the high court in every formal sense. While fights over such nominees occasionally erupted, they were rare. The nomination of John Paul Stevens as late as 1975 received unanimous Senate approval in a mere 16 days.

Yet based on recent trends in Supreme Court nominations, Sotomayor can probably expect a minimum of 30 votes against her, maybe more like 40. She can expect highly contentious questions about everything she has ever written or said. She can expect a team of operatives to spend the next few months digging up dirt on her. And she can expect insinuations of perjury before the Senate Judiciary Committee to the extent that there is any tension between her voluminous judicial work and the words she speaks in the careful dance in which she will engage with the committee.

Our system has gone from one in which people like Sotomayor, Chief Justice John Roberts and Justice Samuel Alito are shoe-ins for confirmation to a system in which they are shoo-ins for confirmation confrontations. It's worth asking whether America gets anything in exchange for this new presumption, other than battles that serve to energize both political bases.

FINAL UPDATE: The final vote tally was 68-31 in favor of confirmation.

He said he was not aware that any of the companies were already engaged in illegal activity at the time that he helped to set up them.

My guess: The author or the copyeditor was enforcing some (entirely spurious) rule against splitting an idiom such as "set up," and as a result replaced a perfectly normal construction ("set them up") with a weird and jarring one. I wouldn't go so far as to say that "set up them" is ungrammatical; it's as grammatical as "set up the companies" would be. But it is surely unidiomatic, as a Google Fight reveals; a search through Google News shows an even more lopsided tally, 200:1 in favor of "set them up" rather than 20:1. I'm with Horace's view that custom is the test of good usage, and "set them up" is customary.

Maybe I'm wrong, and maybe "set up them" was just a spontaneous error. But to me it smacks of a general splitophobia, raised to a new level.

UPDATE: Some commenters suggested the problem might be an attempt to avoid a preposition at the end of a sentence; that might be.

On the other hand, Mark Liberman (Language Log), who's a real linguist, did what real scholars do -- which is to say some research. His conclusion, based on the Sun's and others' past practices: "The sentence that Eugene Volokh found is probably an inadvertent editorial error, not a mistaken editorial choice." He also says (as does his colleague Bill Poser) that,

"... helped to set up them" (with the relevant structure and interpretation) really is ungrammatical, i.e. well outside the norms of contemporary English, not just (as Eugene suggested) "unidiomatic". The only (marginal) exception, I think, would be cases with contrastive stress on the pronoun, e.g. "First we'll set up YOU, and then we'll set up THEM".

I happily defer to the view of experts here, especially since they are experts whose work I've long admired.

Unconstitutional for South Carolina To Ban Alcohol Possession and Consumption by 18-to-20-Year-Olds?

S.C. Stats. §§ 63-19-2440 and -2450 generally ban under-21-year-olds from possessing or consuming alcoholic beverages. (There are some exceptions, including for consumption in religious ceremonies and in the minor's parent's home.)

Every citizen who is eighteen years of age or older, not laboring under disabilities prescribed in this Constitution or otherwise established by law, shall be deemed sui juris and endowed with full legal rights and responsibilities, provided, that the General Assembly may restrict the sale of alcoholic beverages to persons until age twenty-one.

Respondent further argues that § 16-23-30 violates the state constitution because the age group of 18- to 20-year-olds is being treated differently than adults aged 21 and above....

Article XVII, § 14, specifically makes reference to the fact the General Assembly can restrict the sale of alcoholic beverages to persons until age 21. By expressly allowing the regulation of the sale of alcoholic beverages to the 18- to 20-year-old age group and not stating any other situation in which the General Assembly may restrict the rights of this age group, the state constitution precludes the General Assembly from prohibiting this age group’s possession of handguns. See Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000) (the canon of construction “expressio unius est exclusio alterius” or “inclusio unius est exclusio alterius” holds that “to express or include one thing implies the exclusion of another, or of the alternative”); see also Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) (when interpreting a statute, the words must be given their plain and ordinary meaning without resorting to subtle or forced construction which limit or expand the statute’s operation).

So while the constitutional provision expressly allows bans on sale of alcoholic beverages to under-21-year-olds, it doesn't authorize bans on possession (or for that matter bans on transfer other than by sale). Two magistrate judges have indeed so held, and the logic strikes me as quite right, given the text of the provision and the reasoning in the handgun possession decision (State v. Bolin).

Wednesday, August 5, 2009

The State of Illinois Admissions Review Commission is scheduled to release its report/recommendations tomorrow on its investigation into admissions practices at the University of Illinois. The University of Illinois' website on the Commission is here. (Former Dean) Heidi Hurd's written submission to the Commission is here. Those interested in reading her testimony will find it here, along with testimony from (Current Dean) Bruce Smith.

My wife and I are pretty conservative financially - our second car is a 1992 Honda Civic, bought used from a neighbor with 30,000 miles on it in 1998, and it now has 60,000 miles on it, because - again, part of our pretty financially conservative life style - we live walking distance to my school office. However, the car has no airbags, and with Beloved Daughter newly-driver's licensed, we would like to buy a new sedan, something that (groan) will eventually become her car. Therefore, cheap, cheap to drive, safe, and super, super reliable. Hence something like a new Honda Civic.

Along comes cash for clunkers. Having bought the fuel efficient car the first time around, I look down the list and see ... no Honda Civic! However, I just saw a video of Rep. Russ Carnahan of Missouri informing the press (but not the protesting constituents held outside the doors) that the cash for clunker program is a 'win-win.' (Midway through the video; I'm not posting the video for Dana's comments, but Carnahan's.)

(I was interested to see that the local NPR affiliate, KWMU, reported that the protestors "tried to break up the event but were kept out of the showroom." Looking at the video, I couldn't see any evidence that the protestors tried to break it up, and they left the showroom as requested. If someone at KWMU wanted to offer the factual basis for the preceding sentence, I'd be interested.)

I am trying to figure out how it is a win for me, in anything other than an abstract social goodness sense. I don't get a financial benefit of $4500 on turning in my car - which, in buying a Honda Civic, is far from minor - because I was prudent and good enough to think about gas mileage rather than simply buying the SUV monstrosities that the other families in our neighborhood were snapping up.

In addition, it seems to me possible - more than possible - that the price of that new Honda Civic is going to be more than it otherwise would be, because a government cash subsidy to the person who made the socially wrong decisions in past years will support the price of that new Honda Civic at something higher than it otherwise would be. Which I will pay, without any offsetting subsidy. Hmm. If this sounds whining, well, I am, because I have this feeling that my wife's and my very middle class financial prudence is, once again, getting played for a sucker.

But okay, past the whining, here's my question. Can you devise a way in which the program could accomplish its goals - and I'm not in principle opposed to getting clunkers off the road - without requiring that the prudent once again subsidize the imprudent?

If you want to explain to me how this is not merely a subsidy supported by the whole or, worse, a transfer from the prudent to the imprudent, I'm open to explanation and if persuaded I'll quit whining. But it does seem to me that not only don't I get a cash benefit that other people get as a reward for what, on the Congress's apparent view of things, are their anti-social buying habits - I'm going to pay a higher price for the new car than I otherwise would. If that's not correct, please explain to me why not. Or, if it is, tell me how the program might be revised to avoid these bad outcomes, or else why it is not possible.

Schneider accused Tarkanian of setting up telemarketing companies that were later found to be running scams and that he turned “state’s evidence” against the telemarketers to avoid being prosecuted.

Tarkanian practiced civil law until 1995 and admitted he helped set up the companies but had no involvement in the day-to-day operations of any of them. He said he was not aware that any of the companies were already engaged in illegal activity at the time that he helped to set up them.

Lief Reid, a former Deputy Attorney General, testified that Tarkanian was not part of the investigation into the companies....

Schneider testified that he relied on his investigator and campaign team for the veracity of the information....

My sense is that such lawsuits by political candidates are quite rare, for several reasons, including that:

The coverage of the lawsuit necessarily repeats the original charges.

It’s hard to prove “actual malice” and therefore the plaintiff will often lose even if he’s right on the substance.

Such lawsuits are very expensive.

Such lawsuits give the defendant an opportunity to conduct discovery that might unearth other things that the plaintiff might not want revealed.

Nonetheless, political candidates are as entitled to protection from false and defamatory statements of fact said with knowledge that they're false, or reckless disregard of the substantial risk of falsehood, as are other public figures. And presumably the jury concluded that the defendant did indeed know the statements were false, or recklessly disregarded that possibility.

By the way, here's what I say in my syllabus about the alienation of affections and criminal conversation. I hope the "pedagogical goals" section helps explain why I've decided to include it, though part of the reason is just that it's a fun subject that's likely to get students excited, which is especially important late in the semester.

Alienation of affections basically consists of a defendant’s (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff’s spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child’s best interest such behavior might not be “wrongful.” In practice, it has generally been applied to lovers who seduce one spouse away from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant’s attentions). The related tort of criminal conversation basically consists of a defendant’s having adulterous sex with plaintiff’s spouse; but for our purposes, we’ll treat that as a subset of alienation of affections (which is indeed the approach in some states).

These torts have been largely abolished, but remain recognized in Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. And they are not infrequently litigated, especially in North Carolina: A 2006 article in the Greensboro News & Record reports that “People filed an average of 245 such suits per year in North Carolina between 2000 and 2005, according to data provided by the state Administrative Office of the Courts.”

By way of comparison, the well-established right of publicity tort seems to be litigated much less often (2 cases since 2000 in the NC-CS and NC-TRIALORDERS Westlaw databases, as opposed to 38 for the alienation of affections). Even on a national basis, an ALLCASES search for sy(“right of publicity” ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. So there’s life in this old tort yet, though query whether there should be.

Pedagogical goals: (1) Throughout most of the class, we’ve discussed how tort law has substantively expanded, so that formerly nontortious behavior is now treated as tortious. It’s easy to assume, even unconsciously, that this trend is natural, irreversible, and right. But these torts help illustrate that torts could also be abrogated, either through judicial or statutory decision. (This has also happened in narrower contexts as to negligence and strict liability—consider, for instance, some tort reform proposals that have capped damages.) And considering the rejection of these torts might lead us to ask, especially in the coming units: Should any other torts be rejected or dramatically narrowed as well?

(2) The rejection of these torts also leads us to ask: Why would courts or legislatures reject liability for behavior that is pretty clearly wrongful (which adultery is, even if some forms of alienation of affections might not be), and that is pretty clearly emotionally damaging to the victim? Did they conclude that the damage wasn’t real enough, because it isn’t physical? (That would also bear on some of the other torts we’ve been discussing in the last few units, and that we’ll discuss in the coming units.)

Did they conclude that the behavior should be within people’s zone of liberty? (Why would that be so, about adultery? Also, should the same rationale apply to some of the other torts we discuss below?) Did they conclude there were especially severe problems of proof for these torts but not others? Did they have any other reasons?

(3) And we should be open to the possibility that the progress of the law here has been mistaken, and should be reversed. Should states readopt the torts. Why, or why not?

So having yet again heard about how the U.S. is the only U.N. member, other than Somalia, not to sign the U.N. Convention on the Rights of the Child, I decided to read the thing. This led me to be tentatively pleased that we haven't signed and ratified it. (I say tentatively because my view is based on just reading the treaty; it's possible that I've misread parts or missed important counterarguments, so I'd be happy to be enlightened in the comments about any errors I may have made.)

I think that we generally shouldn't ratify treaties unless we're prepared to comply with them and be bound by them for the future, and I think there are many provisions that I think we shouldn't accept. Nor do I see any strong reasons to adopt this particular treaty. I don't see the treaty as materially furthering justice and human rights in the U.S.; our legal treatment of children is hardly perfect, but I don't think the provisions would help it. Nor do I see our ratifying the treaty as likely to materially advance decent treatment by other countries. While I'm sure that some people are mocking us for not ratifying it, I doubt that our ratifying it or not would actually materially affect foreign regard for us in any way that's useful to us.

And while in some situations I think it's quite proper to ratify treaties that we have no desire to comply with, if some important national security concern calls for it — I certainly don't think that compliance with treaties and honesty in international relations are inexorable commands — I think the presumption should be not to sign things unless we're willing to comply with them. (That the treaty won't be self-executing, and thus generally doesn't become domestic law until there's affirmative Congressional action to implement it, doesn't change the analysis: We would still be obligated by our promise to enact such implementing statutes, so we shouldn't sign unless we're prepared to do so.)

Here are a few of my specific objections:

Article 37(a) would not only ban capital punishment for crimes committed when the criminal was under 18, but also bans life imprisonment without the possibility of parole in such cases. I highly doubt that such a ban is wise, and while I'm open to being convinced, I certainly don't think that we should accept it as a binding obligation that covers all the states.

Article 3, section 1, says that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Yet American law rightly provides that some restrictions on parental rights can't be done under a mere "best interests" standard. Parental rights, for instance, can't be entirely terminated unless the parent is outright unfit. Courts can't consider a parent's interracial relationship in a child custody decision (that's Palmore v. Sidoti) even if they conclude that the relationship in some measure undermines the child's best interests, for instance by risking social harassment of the child. Many courts have said that courts can't restrict parents' religious teachings on the grounds that the teachings are against the child's "best interests," unless the teachings are likely to be seriously harmful to the child. And that's even in divorce cases, where the best interests standard usually applies — courts are even more constrained in restricting parental teachings when the family is intact.

It's possible that all these constraints on the best interests standard would be trumped by article 3. Perhaps this can be evaded by saying that best interests need only be "a" primary consideration, and not the only one (though how can it be a "primary" consideration if parental rights often trump it?). But that's far from clear to me, and it seems to me better not to accept such a provision rather than finding a way of evading it.

Article 3 would also apply to "private social welfare institutions," even when no risk of imminent physical or serious psychological harm to the child would take place. Presumably such social welfare institutions would have to be barred from instead making the parents' preferences, or the institution's and parents' shared religious views, the primary factor.

Under article 12, section 1, sufficiently old and mature children would have to have the legal right "to express [their] views freely in all matters affecting the child," and to have "due weight" given to those views. Whether that's sensible or not, I don't think that the entirety of the U.S. should be bound to such a rule as a matter of international commitment.

Article 14, section 3 might overturn Employment Division v. Smith in some measure, by providing that "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." If "manifest" is read as "act based on" and not just "publicly speak about," that would mandate that all states adopt at least a limited religious exemption regime. While I support states' imposing such regimes as a matter of statute, which can be modified by a later state statute — when the legislature disagrees with courts about what is necessary to protect public safety and the rights of others — I oppose the federal government's imposing such regimes as a matter of treaty, which can't be modified by each state legislature.

Article 24, section 3, article 27, and possibly article 18, section 3 seem to require that governments provide certain kinds of welfare state benefits, such as free assistance for disabled children. Though American governments likely provide most such benefits already, I don't think we should commit the federal government and state governments to providing such benefits. Rather, I think we should be free to have such benefits ebb and flow with domestic public opinion. I'd say the same about compulsory education rules as well as government-funded primary education, which article 28 requires, though that's likely hypothetical, since compulsory free primary education is so entrenched in American life.

In any case, these are just some of the concerns I have. I suppose we could avoid them by ratifying the treaty with various reservations. But again that strikes me as valuable only when there's real value to us in signing the treaty (especially when there would have to be many reservations).

Note: There's a famous and longstanding dispute about whether it's constitutional for Congress, acting pursuant to a treaty, to do things that it would otherwise lack the power to do (such as mandate religious exemptions from all state and local generally applicable laws). But even if Congress couldn't do this, as a matter of U.S. constitutional law, ratifying the treaty would obligate it to do all it can — for instance, to propose a constitutional amendment that would let the nation comply with its treaty obligations, or (more likely) to pressure states into complying with the treaty through threat of loss of funding. So the objections I raise above are present regardless of one's view on this Congressional power question.

UPDATE: I originally cast the post in terms of signing the treaty, since if the President signs the treaty he's presumably committing himself to trying to get the Senate to ratify it. To be more precise, I've mostly changed "sign" to "ratify," since it is indeed the legally operative ratification that strikes me as especially troubling. But for my purposes there's no distinction between whether we should sign the treaty and whether we should ratify it.

Andrew Hall, superstar energy trader, has made Citicorp hefty amounts of money through the proprietary trading his group (Phibro) undertakes in the energy markets. More power to him. The terms of his contract, so far as one can tell from news reports, obligate Citicorp to pay him something on the order of $100 million, essentially as a percentage of the profits from his trades.

The question, as a WSJ editorial observes today, is not whether Citicorp - despite massive government bailout money not related to Hall's unit - has an obligation to honor the contract (although Citicorp, responding to political pressures, seems to be balking). The question is whether Citicorp, as a bank holding company with commercial banking deposits guaranteed by the Federal government, ought to be permitted to engage in proprietary trading of the kind that Hall undertakes, whether profitably or unprofitably or, in other words, ought the bank holding company to be undertaking such risks at all. If Citicorp is deemed too big to fail, and with its government guaranteed units contributing some part of the capital of the larger corporate entity, should it be allowed to engage in proprietary trading of this kind in the first place.

Should Hall be spun off to take his operations elsewhere - somewhere, so hopes the Journal editorial, where the possible failure of his energy market bets would not involve taxpayer bailouts. Or, in some ways worse, the Fannie-Freddie situation of a cost of capital as a base from which to place those bets that is not artificially ( and eventually, I would add, drawing on the experience of Fannie-Freddie, politically) lowered by the presence of the government guarantee?

[A]n important issue—especially for taxpayers—is whether Citigroup ought to own a high-risk trading operation like Phibro. As a bank holding company, Citi is funded in part with deposits insured by the taxpayer. And we know from painful experience that regulators think Citigroup is too big to fail. Citigroup executives and board love the revenue and profit that Mr. Hall generates, and they’ve left him on a long leash because his risky bets on the direction of oil prices have generally paid off. But if those bets go wrong and they jeopardize Citigroup, then taxpayers get hit with the bill.

In Phibro and Citi, we can see writ small the debate over financial regulation that took place inside the Obama Administration. Former Fed Chairman Paul Volcker has been warning for months that such proprietary trading is incompatible—and intolerable—with a taxpayer guarantee against failure. But he was opposed by the Obama Treasury, White House powerhouse Larry Summers, not to mention the ghost of former Treasury Secretary and Citigroup exec Robert Rubin and most of Wall Street.

Mr. Volcker’s advice would have meant restraining bank risk-taking in ways that would also limit bank profits. But this is politically hard to do in the face of Wall Street opposition. It’s so much easier to preach about the wonders of a new “systemic regulator” and roar against $100 million bankers. But for all of their banker-baiting, Democrats in Washington still want to let the biggest banks place enormous bets with taxpayer guarantees. High-risk, high-reward businesses play a vital role in the American economy, but Fannie Mae should have taught us that disaster for taxpayers is inevitable when private reward is combined with socialized risk.

The editorial notes that Paul Volker has been calling such proprietary trading by entities that also have related commercial, guaranteed banking units a bad idea and something that should be prohibited by legislation and regulation. The bank corporations do not want to do this, for obvious reasons that it erodes the profits, lowered cost of capital, and public insurance against losses. It does not appear that a prohibition will make it into the various pieces of financial reform legislation proposed by the administration.

The most interesting part of this, however, is the Journal's observation - a view I basically share - that the administration's alternative form of regulation is instead to simply treat this as a problem of monitoring and avoiding future situations of systemic risk. Volker's view amounts to prohibiting an activity that is at the heart of creating institutions that are not just too big to fail, but which also have an incentive to make bets inappropriate, one might have thought, to the risk that the public fisc should be willing to bear (viz., the liquidity risk of a run on the bank, rather than the solvency risk of leveraged bets induced by distortions of moral hazard).

The administration's proposals in effect kick the can of the substantive question down the road, and invest the solution in a vague process that depends not upon structurally proper incentives for the banks and financial institutions, but instead on the ability of the Fed to identify, police, and prevent eruptions of systemic risk as they develop. I understand, and sympathize with, the difficulties of fending off Wall Street banks and the lobbyists. But this seems to me a structural incentives problem that is way, way beyond problems of compensation czars and such populist sounding measures that do not really get to the heart of the matter here.

I'd be interested in hearing serious arguments against Volker's suggestion to ban proprietary trading by such institutions as Citicorp. I realize that there are tradeoffs - there are ways, for example, in which the pursuit of trading profits by financial institutions mirrors the problems - but also the 'solutions' - of S&Ls years ago. I'd be interested to hear of reasons why either proprietary trading is not the problem of structural incentives I've here suggested, following the WSJ editorial, or why banning it is worse than the administration's alternative. The administration's alternative seems to me not to address fundamental structural incentives, while making the Fed, for yet another gargantuan issue, the first and last, remarkably ad hoc, trip wire of protection against systemic risk.

I've finally finished my syllabus and supplemental readings for the Torts class I'll be teaching this Fall; if you want to take a look, it's here. I try to create pretty detailed syllabuses for my first-semester students, in which I discuss the pedagogical goals for each unit and often pose questions or give background information; that ends up being about a page per unit, which together with the supplemental readings and some preliminary materials means I've had to produce 104 pages. A lot of work up front, but I think that it pays off during the semester.

In any case, I thought I'd mention what we'll be covering. We'll begin with trespass, and the defense of necessity. We'll go on to negligence, causation, strict liability, product liability (which is partly strict liability and partly negligence), and nuisance. We'll do damages, contributory and comparative negligence, and assumption of risk. We'll then cover intentional infliction of emotional distress, intentional interference with contract, intentional interference with prospective economic advantage, alienation of affections and criminal conversation, disclosure of embarrassing facts, and the right of publicity.

That's a lot of coverage, but the class is 5 units (i.e., 250 minutes per week) and runs 14 weeks. The readings thus end up being only 6 to 7 pages per unit, pretty modest as law school readings go. And I hope it gives students exposure to a wide range of concepts and principles that arise routinely in tort cases, including business tort cases and not just personal injury cases. (If I had still more time, I'd have liked to include some of the falsehood-based torts, such as fraud, negligent misrepresentation, and trade libel.) If you're curious, check out the syllabus.

UPDATE: Note that the view at UCLA is that our classes aren't primarily aimed at preparing students for the bar, though we hope that the concepts and skills we teach will help them on the bar. Likewise, while we tend to focus on areas that are practically important -- which is why I don't include battery, for instance, but I do include the interference with contract and business relations, as well as the basic negligence and strict liability cases -- that isn't our only goal.

Rather, we will sometimes (1) include a topic that is a good vehicle for exposing students to certain concepts or policy arguments, even if it's not that practically important, and (2) not include a topic that is practically important but that uses concepts that we think are covered well elsewhere, and that practicing lawyers can therefore easily pick up on their own. Plus we'll sometimes cover some fields just because we think they're especially likely to excite students and thus produce an interesting class discussion of the broader issues.

That, for instance, is why I haven't included conversion, but included alienation of affections (which in case takes up less than one day). As to libel, my worry is that it would take too long to cover it adequately, plus much of it is covered in most First Amendment law classes. I've therefore decided to cover the communicative torts via the right of publicity and the disclosure of private facts tort, which are more manageable, and which also involve live current policy debates among the courts in a way that libel law doesn't.

John Culhane is continuing a series of posts this week on religious liberty and gay marriage. (See here, here, and here) The posts have been very informative and lively. In today's post, he takes the view that there is no need for special religious-liberty exemptions in SSM but offers an especially creative and interesting alternative. The core of the proposal is this:

Why not simply remind the [religious] objectors – I’d support a law spelling this out – that they have a right to clearly state that they oppose same-sex unions and would “prefer to step aside” (borrowing and repurposing language from Professor Wilson here) for religious reasons. There might even be standard, respectful language suggested (not mandated, but perhaps bulletproof), making clear that the proprietor’s objection is based on religion, not animosity. What same-sex couple wouldn’t respect that, and go somewhere else – if they could?

If they couldn’t – the dreaded one-florist town! – the couple could, under my proposal: (1) forego flowers (gasp!); (2) if botanically feasible, order some from out-of-town, or (3) fail to respect the wishes of the religiously objecting florist and use their services anyway. Wilson et al. would achieve that result through a “hardship exception” (only in a wedding-obsessed culture could the possibility of having no flowers at a wedding be thought of as a “hardship,” by the way), but then we might find ourselves litigating the issue of hardship. “We had a hardship.” “No, you didn’t.” Please, stop. Let’s not invent laws we hardly need.

Let's be clear what we're talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons. The gay couple nevertheless wants to force the transaction by seeking some legal remedy under a state antidiscrimination law that (a) applies to the transaction and (b) is not already subject to an exemption for religious objectors. I have found no reported cases so far in which all these conditions were present. But that doesn't mean they won't ever happen. It is for dealing with such cases that we are seeing proposals for special religious-liberty exemptions that apply to the provision of goods or services related to a gay marriage or to the status of being in a gay marriage.

Culhane's proposal for dealing with what seems likely to be a very rare confrontation will not please purists on either side, who really want maximum cultural conflict over this issue. On the pro-SSM side, some will insist that allowing a florist to put up a "no gay couples" sign is repugnant, even if the florist in fact is required not to discriminate. To them it would be akin to inviting Ollie's BBQ to put up a sign saying "no colored folks — but the law requires us to serve you anyway." On the anti-SSM side, some will insist that the signs are just window-dressing, provide no legal protection, and may expose business owners to even more litigation by advertising their aversion to gay marriage.

But if, as I suspect, (1) gay couples will generally not want to work with business owners who make it plain that they object to same-sex marriages, and (2) only the most sincerely and deeply religious objectors would put up such a sign, the number of religious-liberty legal confrontations over SSM ceremonies should be reduced.

The potential difficulty with Culhane's proposal is that it might be too clever and subtle to work politically. How do you sell the idea that a business owner has a right to put up a sign but no right to act on the message in the sign?

An alternative would be to include a specific religious-liberty exemption in SSM laws but require the sign display ("no gay couples") as a condition of being protected by the exemption. This should also reduce litigation, for the same reasons discussed above. Only the serious culture warriors will force the issue. I suppose there might be a First Amendment objection to requiring the sign display as a condition for getting the protection of the exemption. But since the exemption itself is not constitutionally required, that would be a complicated and doubtful claim.

I'm open to either alternative in principle, since in my view there is very little legal or experiential justification for special religious-liberty carve-outs in laws authorizing SSM, but some accommodation may be necessary politically to assuage SSM moderates in state legislatures and in referenda.

The WSJ law blog reports that Senators Arlen Specter (D-PA) Jack Reed (D-RI) and Edward Kaufman (D-DE) are pushing legislation to overturn the Supreme Court's decision in Stoneridge Investment Partners v. Scientific-Atlanta. In this case, the Supreme Court held, 5-3, that private rights of action under Section 10(b) of the Securities Act do not reach third-party actions where shareholders did not rely upon the third party's actions or statements. Section 10(b) did not create such "scheme liability," the Court held.

Stoneridge was a very significant case — easily one of the most important securities-law cases of the past ten years. Overturning it would also be quite significant. As the WSJ reports, it would "give plaintiffs lawyers — especially those who file shareholder fraud suits — a shot in the arm."

Tuesday, August 4, 2009

The Obama administration is refusing to quickly release government records on its "cash-for-clunkers" rebate program that would substantiate — or undercut — White House claims of the program's success, even as the president presses the Senate for a quick vote for $2 billion to boost car sales. . . .

The Associated Press has sought release of the data since last week. Rae Tyson, spokesman for the National Highway Traffic Safety Administration, said the agency will provide the data requested as soon as possible.

DOT officials already have received electronic details from car dealers of each trade-in transaction. The agency receives regular analyses of the sales data, producing helpful talking points for [Transportation Secretary] LaHood, White House spokesman Robert Gibbs and other officials to use when urging more funding. . . .

LaHood, the program's chief salesman, has pitched the rebates as good for America, good for car buyers, good for the environment, good for the economy. But it's difficult to determine whether the administration is overselling the claim without seeing what's being sold, what's being traded in and where the cars are being sold.

LaHood, for example, promotes the fact that the Ford Focus so far is at the top of the list of new cars purchased under the program. But the limited information released so far shows most buyers are not picking Ford, Chrysler or General Motors vehicles, and six of the top 10 vehicles purchased are Honda, Toyota and Hyundai.

UPDATE: Andrew Sullivan also likens "cash-for-clunkers" to FDR-style policies, and thinks this is a reason the program should appeal to limited-government types. Matt Welch responds. My take: There are many reasons to doubt the GOP's commitment to a limited-government agenda, but opposition to cash-for-clunkers ain't one of them.

A Zogby press release reports 83% support for laws that let pretty much all law-abiding adults, at least ones age 21 and above, get licenses to carry concealed weapons. (These are generally "shall-issue" laws, because they provide that a license "shall issue," rather than just may be issued, if certain largely objective requirements for licensing are met.)

But while I support shall-issue laws, I'm pretty skeptical about the findings, because of the text of the question:

Currently, 39 states have laws that allow residents to carry firearms to protect themselves, only if they pass a background check and pay a fee to cover administrative costs. Most of those states also require applicants to have firearms safety training. Do you support or oppose this law?

The question as read over the phone obviously doesn't include the commas, so it seems to me that some listeners can easily interpret it as describing laws that limit who may carry guns — laws that "allow residents to carry firearms to protect themselves only if they pass a background check and pay a fee to cover administrative costs." The listener may well assume that these laws are enacted against a backdrop of discretionary licensing, where the police may deny licenses at will (more or less the case in California, for instance), and that the laws simply provide that such discretionary licenses may not be issued unless a background check is passed and a fee is paid.

And this is unfortunately consistent with other surveys I've seen, such as a CNN 6/4-5/08 survey that reports 48% of respondents favoring "preventing gun owners from carrying a concealed gun in public," and 52% opposing, and an ABC 4/22/07 survey that reports 42% of respondents favoring "a law requiring a nationwide ban on ... people carrying a concealed weapon (with 55% opposition). These surveys reveal at most 52%-55% support for shall-issue laws (I say at most since one can oppose a nationwide ban on concealed weapons, or even a local ban on concealed weapons, but still not support a shall-issue regime). I can't see why that would increase to 83% in the last two years; and while it's possible that highlighting the requirements of background checks, fees, and training might increase the support in some measure, I'm skeptical that the increase would be so great.

[On his show, Beck quoted the following statement from cars.gov]: "This application provides access to the DOT CARS system. When logged on to the CARS system, your computer is considered a federal computer system and it is property of the United States Government. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized CARS, DOT, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign." ...

The Department of Transportation confirmed the language was on the cars.gov Web site, but on Aug. 3 it was removed. The DOT released this statement to PolitiFact: "A security warning on the CARS.gov dealer support page that stated computers logged into the system were considered property of the Federal Government has been removed. We are working to revise the language. The language was posted on the portion of the website accessible by car dealers and not the general public."

"It would be factually inaccurate to say that any computer that went to cars.gov would become the property of the U.S. government," said Sasha Johnson, a DOT spokeswoman said....

What a screw-up. I have no reason at this point to think that this was part of some malevolent government conspiracy, or even of a well-intentioned but ill-thought-through design. It might well have been an error by one low-level Web designer, which wasn't reviewed by any higher-up. Still, what a mistake to make, especially when people are understandably concerned that the federal government in general likes to poke around on your computer systems. (I approve of some degree of such poking around, in some cases, but the existence of federal computer surveillance and the growth of such surveillance makes erroneous claims of such surveillance especially plausible and frightening to people.)

PolitiFact goes on to point out that the Glenn Beck item was mistaken in suggesting that the warning purported to apply to consumers — it only applies to dealers that access that part of the site. I think in the course of this, PolitiFact underestimates the propriety of the criticism (referring to "the small amount of truth in their comments [on the Beck program]") and exaggerates the error. But that's tangential to the point I'm making here, which is about the Department of Transportation error and not about the Beck program's errors.

Thanks to Angela Thornton Canny for e-mailing me to alert me to the controversy.

UPDATE: Someone whom I know and trust on such matters e-mails me the following speculation:

Most U.S. government computers have a "banner" that greets a government user that says the computer belongs to the U.S. government and that any and all communications can be logged. The purpose of the banner is to give notice of monitoring that generates consent to monitoring under the Wiretap Act.

I would guess that someone who didn't understand the law thought that they needed to have a similar banner for the use of cars.gov, so they just took the standard banner and replaced the phrase "this computer is the property of the U.S." with the phrase, "When logged on to the CARS system, your computer is considered the property of the U.S. government."

The trick is that who owns the computer is actually irrelevant to the monitoring, and no such notice of the monitoring is required when the government's computer is the recipient of the communication and not the originator. So it was probably just a screwup thanks to someone who didn't understand the legal purpose of the "banner" notice widely used on government machines.

(Just to make clear, the monitoring that my correspondent says would be generally authorized would be the monitoring of material from the government computer side — not the reading of material on any private computer that's communicating with the government computer.) Sure enough, my search revealed similar language on a Los Alamos National Laboratory site, as well as several other sites:

This is a Federal computer system and is the property of the United States Government. It is for authorized use only. Users (authorized or unauthorized) have no explicit or implicit expectation of privacy.

Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to authorized site, Department of Energy, and law enforcement personnel, as well as authorized officials of other agencies, both domestic and foreign. By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection, and disclosure at the discretion of authorized site or Department of Energy personnel.

This book, reviewed in the New York Times on Sunday, and written by an eminent historian presidential biographer, is a history and critique of the Supreme Court. I've read it. The only thing I learned is that there is still at least one historian who is stuck in a 1930s time warp, in which the history of the Court is a battle between evil reactionaries who oppose "Progressive" legislation and brave, goodhearted liberals who support such legislation. Every hoary Progressive/New Dealer myth about the Supreme Court and its Justices is trotted out, every liberal shibboleth of the past seventy years repeated.

Consider Burns's depiction of the Justices the early 20th century. Holmes, Brandeis, and Harlan were the liberal heroes, everyone else the reactionary villains.

Thus, Holmes was the "great dissenter" who pitted "pragmatism against conservative dogma." No mention of his hostility to African-American rights, support for eugenics, and so forth. John Marshall Harlan, who helped introduce the liberty of contract doctrine to the Supreme Court, and wrote one of the most important liberty of contract cases, Adair v. United States, is anachronistically described as a "liberal." Brandeis was "an exquisitely tolerant, compassionate and wordly man" with a "zeal for freedom ... in his blood."

The rest of the Court, however, adopted the late Justice Stephen Field's "laissez-faire absolutism." William Day (who dissented in Adair) was a "reliable ally of the court's conservative phalanx." All of the six Justices appointed by William Howard Taft were "stout conservatives." William Van Devanter was the "commander-in-chief of judicial reaction." George Sutherland was the leader of the Court's "extreme right-wing." Pierce Butler, who was perhaps the strongest opponent of the excesses of Prohibition enforcement and the only dissenter in Buck v. Bell (coerced sterilization), is reduced to a right-wing railroad lawyer who showed no "regard for dissidents, or for blacks or workers." And so on.

No serious modern historian of the Court would recognize these cartoon characters. But this book, I'm afraid, is not a serious history.

The Obama administration is starting to look more like Castro's Cuba by the day. Here they claim they're not concerned about protests against ObamaCare, but still, just in case, feel free to snitch on your neighbors.

There is a lot of disinformation about health insurance reform out there, spanning from control of personal finances to end of life care. These rumors often travel just below the surface via chain emails or through casual conversation. Since we can’t keep track of all of them here at the White House, we’re asking for your help. If you get an email or see something on the web about health insurance reform that seems fishy, send it to flag@whitehouse.gov.

So if you find someone who disagrees with Dear Leader, rat them out.

Now I've long been bothered by the excessive use of the terms "snitch," "rat," and so on (see, for instance, here and here). Some reporting of bad conduct to the government is bad. Some may be socially good, but might still reflect badly on the person doing it (for instance, someone who turns state's evidence simply to get a lower sentence may be doing a public service, but shouldn't get much praise for it). Much may be socially good and not reflect at all badly on the reporter -- consider people's reporting serious criminal conduct (especially conduct that we agree should probably be considered criminal). Likewise, while some government attempts to gather information about bad conduct are bad, others are perfectly proper.

In this instance, it strikes me that the terms "snitch" and "rat" are entirely misplaced (even allowing for some facetiousness on the poster's part), as is the criticism of the government. The Administration is trying to promote a particular political agenda. They are naturally and reasonably interested in hearing what the arguments against it are, and doubtless sincerely believe that many of the arguments may be unsound or even factually false. They want to rebut such arguments, but they can't do so promptly unless they hear about it promptly.

There's nothing totalitarian about asking supporters to gather this information. And there's nothing morally contemptible (as the terms "snitch" and "rat" suggest) in passing along this information, if you genuinely think that the information is misleading.

Now of course if you think that the Administration would prosecute your friend for e-mailing you supposed "disinformation about health insurance reform," then indeed you shouldn't help the Administration do it. But, seriously, is that really likely? JammieWearingFool and the Administration's other critics seem not to worry that their criticisms of the Administration will get them thrown in prison, or even will lead to any harassment from the FBI or the like. (To be sure, some criticisms, for instance ones that contain threats against the President, might yield that, but I assume that this isn't what the information reported to flag@whitehouse.gov is likely to contain.) I take it that they think, as do I, that blog posts or e-mails to friends about health insurance reform are pretty safe from legal punishment and governmental harassment. And that makes it pretty likely that alerting people on your political side of the aisle in the Administration will simply lead to public rebuttal. It's hardly "look[ing] more like Castro's Cuba" for that to happen, nor is it "snitch[ing]" or "rat[ing people] out" when someone facilitates it.

Finally, I recognize that it's possible that some "disinformation about health insurance reform" might indeed lead to prosecution or administrative action. For instance if the information appears in messages that urge the support or defeat of a candidate, and those messages are put out by 501(c)(3) tax-exempt organizations, the organization could potentially lose its tax exemption for the electioneering communication. Likewise, there are restrictions (which I agree are quite substantively troubling) on corporations' conveying similar messages related to candidates near election time; violation of those restrictions could lead to legal punishment. But such organizational communications seem already likely to be pretty high-profile, and likely to come to the government's attention in any event. I don't think that someone who gets a possibly tax-law-violating or election-law-violating mass mailing from (say) the Sierra Club and alerts the government to the possible violation can be reasonably said to be "snitch[ing]" on the Sierra Club. The force of the "snitch" / "rat ... out" / "Castro's Cuba" argument, I take it, comes from the suggestion that there's something improper in passing along communications from friends or neighbors -- rather than public press release or fundraising letters from organizations -- to the Administration, which is trying to rebut such communications. And that strikes me as quite mistaken, for the reasons I gave above.

It turns out that you can reverse engineer a pacemaker with sufficient accuracy that you can broadcast radio signals to it to induce various undesirable actions, such as broadcasting the pacemakers existence (including model and serial number), broadcasting personal information such as the patient’s name, disclosing cardiac data recorded by the device, changing the patients name, changing therapies, and inducing fibrillation (!). You can also perform a “denial of service” attack on it. All were done via radio. See http://blogs.zdnet.com/BTL/?p=8218 for a high-level description, http://www.secure-medicine.org/icd-study/icd-study.pdf for technical details. Not a new story -- it was out last year -- but new to me.

The complaint is based on breach of contract, a violation of the Computer Fraud and Abuse Act, trespass to chattels, conversion, and a violation of the Washington Consumer Protection Act. As I noted earlier, Amazon's actions were indeed not authorized under the terms of use, which say that "Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times." This makes for a strong breach of contract claim (though the damages might well be modest), and makes the other claims at least plausible, though I don't know enough to speak in detail about them. I also can't speak to whether class certification would indeed be sound here.

Special note: Two of the proposed classes for class certification purposes are labeled "The Big Brother Class" and "The Big Brother Work-Product Subclass." Shades of the anonymous plaintiff Guy Montag Doe?

By the way, according to the Complaint, "Earlier in 2009, Amazon reportedly remotely deleted certain copies of “Harry Potter” books by J.K. Rowling and certain copies of books by Ayn Rand." Assignment: Discuss, in light of Howard Roark blowing up the housing project.

Is Financial Regulation Overhaul Stumbling? And Can the Fed Remain 'the Fed' After the Overhaul?

(Update: In other news out of Washington DC today, my sixteen year old daughter got her driver's license this morning, in a road test that she herself described as "weirdly easy" and which Dad will rephrase as "alarmingly" so.)

"Overhaul Stumbles" is how the headline the Wall Street Journal put things this morning in its account of a high level meeting of Treasury Secretary with other top financial regulation officials, including Fed chief Bernanke, SEC Chairman Schapiro, and FDIC head Sheila Bair: "Geithner Vents as Overhaul Stumbles." (WSJ, Tuesday, Aug. 4, 2009.) According to the article:

Treasury Secretary Timothy Geithner blasted top U.S. financial regulators in an expletive-laced critique last Friday as frustration grows over the Obama administration's faltering plan to overhaul U.S. financial regulation, according to people familiar with the meeting.

The proposed regulatory revamp is one of President Barack Obama's top domestic priorities. But since it was unveiled in June, the plan has been criticized by the financial-services industry, as well as by financial regulators wary of encroachment on their turf.

Mr. Geithner told the regulators Friday that "enough is enough," said one person familiar with the meeting. Mr. Geithner said regulators had been given a chance to air their concerns, but that it was time to stop, this person said.

What's the pushback about? Turf battles among agencies, according to the article. Put substantively, Bair and Schapiro both object to the Administration's plan to vest so much of the authority for dealing with financial crises, under the doctrine of safeguarding against systemic risk, in the Fed:

Ms. Schapiro and Ms. Bair, among others, have argued that more authority should be shared among a council of regulators.

"You are talking about tremendous regulatory power being invested in whatever this entity is going to be," Ms. Bair told the Senate Banking Committee last month. "And I think, in terms of checks and balances, it's also helpful to have multiple views being expressed and coming to a consensus."

Officials from the Federal Reserve and the Office of the Comptroller of the Currency, meanwhile, have questioned the creation of a new federal agency to oversee consumer regulations, a move that would take away powers from both institutions.

But the article makes reasonably clear that, despite the agency battles over who gets or does what, the legislative actions on the various piece of the reform plan will mostly - not completely by any means, but mostly - take place. As has been noted, industry groups have gotten active in lobbying on this or that, threatening to kill the Administration's overall proposal by a thousand small cuts, but my impression is that at least at this stage, the Administration's basic plan is on-track legislatively. (I put up an earlier post about the Treasury plan and its views on global financial regulation reform; I will try to put up some other posts going to particular parts of the Treasury proposal - and if I'm lucky, get them up before anything happens legislatively (!))

An important question is raised by the Administration's plan to place so much of the power for addressing systemic risk in the Fed, and it does not appear to me to have been extensively discussed, at least not in the terms I suggest here. The question is whether the Fed, so empowered with all these new functions and duties and powers and authority, can remain the Fed. Will the Fed remain the Fed?

(This is leaving aside the other huge policy presumptions of the Administration's proposals, starting with acceptance of certain institutions as too big to fail and attendant moral hazard.)

A principal reason why the Administration's plan proposes to use the Fed is that it has enormous latent powers to act and legitimacy to do so. But its ability so to act depends upon a peculiar expression of legitimacy in a democratic system - its reputation for being above day-to-day politics while still taking the most profoundly political actions conceivable (the issuance of fiat money). Its relationship to Congress is one of reporting and expressing all the properly democratic sentiments of obeisance to the crowd of nitwits, blowhards, and self-dealers who have managed to entrench themselves as rent-extractors on the dividing line of public and private; but who, for all that, are the People's Representatives (God save us all) in our extended exercise in democratic self-government.

The system for its legitimacy depends upon exquisite attention to the forms of democratic obeisance while taking actions that will almost certainly cause pain to many of those democrats' cherished constituents, in the larger cause of managing the currency and the banking system. Our democracy depends in many respects upon establishing institutions that we empower to inflict short term pain in pursuit of our collective long term interests. Institutions that sit uneasily in a fully democratic system because they are, in one sense, a complement to it, but in another sense something close to a rebuke. Above all it is a question of legitimacy. The Fed cannot ground its legitimacy solely in its technocratic expertise, because that is finally incompatible with democracy; it cannot ground its legitimacy in purely democratic exercises, because its exercises of power are constructed by a democratic system to be, in its most profound actions, taken on the basis of expertise, not popular democratic will in the ordinary sense.

The peculiar mixture of legitimacy is a little like bait and switch, but deliberately designed to be that way. uggest that the Fed should do 'x' because it is the will of the Congress, and it will do whatever it does asserting that it acts from its expertise. Suggest that the Fed should do 'y' because that is the expert thing to do, and it will do whatever it does asserting that, after all, it is a democratically accountable institution with a governing statute and specific limited power, despite their discretionary nature. That's what gives it the ability to act with legitimacy. But it is a delicately balanced form of legitimacy that sits far more uneasily as a matter of both politics and democratic political theory than it might appear. It is a source of legitimacy that is far more easily upset and destabilized than we think; we take the Fed's vaunted 'independence' - even understanding that as a highly nuanced, complicated, ad hoc, shifting balance of power than it first appears - quite possibly far too much for granted.

Arguably the Treasury plan takes the permanency of the Fed's legitimacy far more for granted than it should. Very little in the new grant of power or authority to the Fed takes account of the idea that, for example, a Fed that is supposed to supervise, scrutinize, divinize, and so on, in all these new ways will not the same Fed, the stable ideal of which we relied upon in giving it all these new functions. To the contrary, giving it these new functions shifts the balance of legitimacy - surely in the minds of Congress, to start with - toward the idea that the institution is and ought to be far more politically accountable in the day to day to Congress than it is now. Even a shift in the expectation has an important possibility in shifting, and undermining, the Fed's legitimacy - and yet it was precisely that legitimacy which was the attraction of putting all these functions onto the Fed in the first place. Time will tell how new functions will alter the political nature of the Fed, and its balance of power with Congress. And most of all its legitimacy to be able to inflict short term, severe pain (think Volker in the early 1980s) in the interests of the long term good.

This is not necessarily a reason not to go down this path. No doubt this very question - it is not un-obvious, after all - has been extensively discussed in formulating the Treasury plan, and the failure to raise it a deliberate one (if a mistake, in my view). But there is good reason to wonder whether the ideal of the Fed on which we place so many new duties can be, in virtue of those new duties, the old Fed. Are we asking to have our cake and eat it too?

(Note: Several years ago, Yale constitutional law scholar Jed Rubenfeld published a short book on time horizons in a democracy, on Jefferson's views on whether the dead hand of the past should be able to bind the future, Freedom and Time (2001). When I read it, I thought it an extraordinarily smart and profound take on a topic that, however, seemed to me then an almost wholly abstract jurisprudential proposition. I've since changed my mind completely, and re-read the book; it's a book whose argument deserves a close re-consideration in our present circumstances. There's a very important connection to be made between the arguments in that book, and consideration of the relationship of a democracy to ... long term credit markets and ethical and legal considerations in making decisions what burdens to impose or not impose upon future generations. I would be curious whether Jed has had any thoughts on the application of those arguments from almost a decade ago to today's circumstances.)

The raging controversy over Human Rights Watch's anti-Israel bias, which was sparked with a blog post here at the VC that was republished by the Wall Street Journal'sOpinionJournal.com, just won't die. Readers will recall that the piece focused on a talk Sarah Leah Whitson gave in Riyadh, Saudi Arabia, in which she tried to win friends (and their money) by emphasizing HRW's work criticizing Israel, and HRW's battles against "pro-Israel pressure groups."

Since then, HRW and Israel has been the subject of countless blog posts criticizing (mostly) and defending (occasionally) HRW, and, as best as I can tell given my language skills, been the subject of newspaper articles or editorials in Israel, the U.S., Canada, the U.K., several Arab countries, Australia, Spain and Italy. HRW has issued a release defending itself (explaining how important it is for HRW to counteract the impression in the Arab world that it is pro-Israel!), and has even taken to proactively responding to criticism in Jewish media outlets. Meanwhile, various Israeli government officials criticized Human Rights Watch. According to reports in the Israeli media, the controversy has led the Israeli government to reconsider how it interacts with NGOs, and whether it should be permitting foreign governments to fund local NGOs.

So let me add some additional fuel to the fire.

Sarah Leah Whitson has been HRW's Middle East Director for five years. Ms. Whitson was a classmate of Barack Obama at Harvard Law School, and served on the board of the Armenian Bar Association. According to her bio on HRW's website, "before joining Human Rights Watch, Whitson worked as an attorney in New York for Goldman, Sachs & Co. and Cleary, Gottlieb, Steen & Hamilton."

What the official bio doesn't tell you is that Whitson was an active member of the New York chapter of the American-Arab Antidiscrimination Committee. She had served on the Steering Committee (source: ADC Times, Apr 30, 2002). When HRW hired her, she was serving a two-year term on the new Board of Directors, which replaced the Steering Committee (Source: ADC Times, Jan. 31, 2004).

The ADC styles itself as a civil rights organization, but like the Jewish organizations on which it is modeled, it also involves itself in Middle East issues, specifically by supporting the Arab and Palestinian cause against Israel. Local chapters are often more active on foreign policy issues than is the national organization.

And indeed, the New York chapter generally, and Whitson personally, were active in pro-Palestinian politics. The April 30, 2002, ADC Times. published at the height of the Second Intifada, with buses and restaurants being blown up regularly in Israel, reports:

The crisis in Palestine was the main focus of the New York Chapter's work over the past two months. This work culminated on April 29 with a meeting for representatives of the ADC with the United Nations Secretary General [Kofi Annan] set up by members of the NY Chapter [and see this press release, noting Whitson's attendance]. ADC Chapter President Nick Khoury and Steering Committee member Sarah Leah Whitson helped organize this meeting....
ADC NY members' activism to raise awareness of the situation of Palestinians has taken many forms. On March 30, we chartered a bus to DC so that members could participate in the Land Day Rally at Freedom Plaza. [The New York chapter also held a local rally]....
On April 14, ADC NY organized a silent vigil outside St. Patrick's Cathedral to draw attention to the fact that Palestinian Christians are also suffering under Israeli occupation....

The Jan. 31, 2004 ADC Times , which noted Whitson's election to the Board of Trustees, reported that the New York chapter "continued our Palestine activism over the summer."

So when HRW hired Ms. Whitson to be its Middle East director, it was hiring someone that was in the middle of serving what amounted to a second term on the Board of Directors of an organization that was firmly and openly on the Arab side in the Arab-Israeli conflict. And she had personally engaged in pro-Palestinian, anti-Israel activism while serving in that position. I don't know whether she resigned her position when she started working for Human Rights Watch; if she didn't, it was a clear conflict of interest. Regardless, it should hardly come as a surprise that one of her first acts at Human Rights Watch was to involve the organization in political action, supporting the campaign to get Caterpillar to stop selling tractors to the Israeli Army.

I've also learned that Ms. Whitson is a self-described big fan and admirer of Norman Finkelstein. (Source: Anonymous, but the source provided me with what appears to be airtight documentation). For those not familiar with Finkelstein, imagine a leftist, male version of Ann Coulter who instead of attacking liberals and the liberal establishment, has devoted his career to attacking Israel and the American Jewish establishment. Imagine, though, that this male version of Coulter was a less talented writer, and even more offensive in his description of his adversaries.

Whitson's admiration of Finkelstein has survived the fact that he hasharshlyattackedHuman Rights Watch and Whitson when he has deemed them too hard on Israel's adversaries, or too soft on Israel. By contrast, Whitson has more than once expressed her disdain for HRW's pro-Israel critics, as when she recently and baselessly accused some of us of racism). The logical conclusion is that Whitson is in broad agreement with Finkelstein's extremist anti-Israel views, and therefore forgives his occasional hostile outbursts.

In short, Human Rights Watch, while purporting to be a neutral arbiter of human rights issues in the Arab-Israeli conflict, hired as its Middle East director a person who at the time was intimately involved in pro-Palestinian, anti-Israel political action, and who, not surprisingly, appears to have rather strongly held, far left-wing views on the Arab-Israeli conflict.

Some self-styled Jewish (and non-Jewish) Progressives like Matthew Yglesias, dismiss criticism of HRW as "unsupported accusations of bias" and argue, as far as I can tell on pure faith, that because HRW is a "human rights organization," it can be trusted on all issues, including Israel. In fact, by hiring someone like Whitson to be Middle East Director (and her deputy director Joe Stork, a supporter of the international boycott campaign against Israel, with an exception for academics) HRW hasn't even tried to to maintain the appearance of neutrality or objectivity. And, as I've discussed in previous posts, HRW's bias manifests itself quite clearly in its "reporting."

Monday, August 3, 2009

[Antavio Johnson, 20, was charged with two counts of corruption by threat of a public servant after a Polk County gang detective found the song on a MySpace page belonging to Hood Certified Entertainment in February.

In his song, "Kill Me a Cop," Johnson mentions two Lakeland police officers by name, according to the Sheriff's Office....

Johnson pleaded no contest to the charges July 24 and was sentenced to two years in state prison....

In the song, the lyrics "Im'ma kill me a cop one day" and "Call me crazy but I think I fell in love with the sound of hearing the dispatcher saying, 'Officer Down,'" are repeated....

Johnson also refers to being on probation, Sheriff Grady Judd and the 2006 killing of deputy Matt Williams and his K-9 DioGi....

A friend of Johnson's said he posted the song without paying close attention to the lyrics, and the song was never meant to be released, but it's not clear to me whether the prosecutors believed that.

It's hard to tell whether the song is constitutionally protected without seeing the full lyrics, which I couldn't find. (Please let me know if you have an authoritative copy.) My tentative sense, though, is this:

(1) If Johnson distributed the song (or authorized such distribution) with the purpose of threatening the two particular police officers, then it would probably fit within the "true threats" exception to the First Amendment protection.

(2) If the song had simply generically said that the singer would kill cops one day, it would probably be constitutionally protected.

(3) If Johnson expressly mentioned the two police officers, but did not have the purpose of threatening those officers — but was just saying it as fiction, much as a writer might have a character say things that the writer doesn't intend to have taken seriously — then the speech is probably protected (see Virginia v. Black, Part III.A), though some post-Virginia-v.-Black circuit court decisions say that such a purpose to threaten is not required.

UPDATE: Thanks to Victor Steinbok and commenter Chris Hundt, I got a link to the lyrics, which are here. My sense is that the specific reference to the two police officers would indeed make this into a potentially punishable threat, at least if it could be shown (had the case gone to trial) that the defendant had the purpose of threatening the police officers. It's true that in some contexts speech can be pretty clearly fictional or hyperbolic, so a reasonable person wouldn't perceive it as a serious threat, and a reasonable jury would conclude that the speaker didn't have the purpose of threatening the target. But this is not clearly so in this context (though the defendant would be free to make the fiction argument to the judge and then to the jury, if the case had gone to trial).

Some readers were confused about my comment below that the Consumer Product Safety Improvement Act is having a negative impact on used booksellers. In short, the CPSIA bars the sale of children's books printed before 1985 due to concern that the ink might contain lead. As the Washington Post reported:

Legislation passed by Congress last August in response to fears of lead-tainted toys imported from China went into effect last month. Consumer groups and safety advocates have praised it for its far-reaching protections. But libraries and book resellers such as Goodwill are worried about one small part of the law: a ban on distributing children's books printed before 1985.

According to the Consumer Product Safety Commission, the agency charged with enforcing the act, lead in the books' inks could make its way into the mouths of little kids. Goodwill is calling for a change in the legislation even as it clears its shelves to comply, and libraries are worried they could be the next ones scrubbing their shelves. . . .

Scientists are emphatic that lead, which was common in paints before its use was banned in 1978, poses a threat to the neural development of small children. But they disagree about whether there is enough in the ink in children's books to warrant concern. . . .

The legislation, which passed with strong bipartisan support, was a reaction to lead's being discovered on and in thousands of imported toys, mostly from China, in 2007. It restricts lead content in products designed for children age 12 and younger to 600 parts per million by weight; the threshold drops to 300 parts per million in August of this year. Items as varied as bikes and jewelry are affected.

So are books such as "Madeleine," "Goodnight Moon" and "Corduroy."

Lead was phased out of printer's ink following the 1978 paint ban; lacking a firm date for when it effectively disappeared, the safety commission has ruled that the toxic metal might be found in any book printed before 1985. . . .

Implementation of the new law has libraries and secondhand bookstores reeling. Although they could pay to have each old book tested, the cost ($300 to $600 a book, according to the American Library Association) makes that impractical.

The Ninth Justice blog reports that, according to the Segal-Cover ranking system, Sonia Sotomayor is the most liberal nominee to the Supreme Court in forty years -- the most liberal since Thurgood Marshall in 1967 How could that be?

Segal-Cover rankings evaluate the perceived ideology of judicial nominees by examining how newspaper editorials evaluate their qualifications and ideology. Newspapers have given Sotomayor high marks for her experience -- earning her a 0.8 qualification score. (0 is unqualified; 1 is perfectly qualified.) Yet newspapers have also divided over her ideoloogy -- earning her a 0.79 on ideology. (0 is conservative; 1 is liberal.) For comparison purposes, he scores of other judicial nominees can be seen here.)

Now recall that there have only been two Democratic nominees since President Johnson nominated Thurgood Marshall in 1967 -- Stephen Breyer and Ruth Bader Ginsburg. So, it's possible that Sotomayor could be the "most liberal" nominee without concluding that she's that much more liberal than current justices, at least at the time of nomination. Given the observed ideological drift of Supreme Court justices, to say she's the most liberal nominee is not the same thing as saying she'd be the most liberal justice.

Stony Brook's Jeffrey Segal, who helped develop the system, thinks the focus on the Ricci case and other specific controversies may have played a role. "These scores represent to some extent a fixture on what's current, not necessarily what the court would see," he told Ninth Justice. He also stresses that the system evaluates the perceived ideology of the nominee, and is not a prediction of how a given justice would vote on the Court.

Another possible explanation for Judge Sotomayor's liberal ideology score could be the increased polarization of the Supreme Court nomination process, and the increased attention to judicial ideology in the process. I believe there has been more attention paid to her judicial ideology because more folks on the Right have accepted Senator Charles Schumer's invitation to explicitly consider a nominee's ideology in the confirmation process. As a consequence, it looks as if there will be more votes against Sotomayor than against any Democratic nominee since before World War II.

While I believe Sotomayor is a fairly liberal nominee -- and will be a more reliably liberal vote on most issues than many others expect -- I still do not oppose her confirmation. I remain one of those who believes the Senate should be relatively deferential to a President's judicial picks, focusing on qualifications, character, and temperament, rather than ideology. Thus, even if I believed Sotomayor was the "most liberal" nominee in decades -- and would, as a consequence, be the most "liberal" justice in a generation -- my position would be the same.

Here's a case I ran across in preparing for my Torts class this Fall; I hadn't heard about it before, so I thought I'd note it here. The case is Touchette v. Ganal, 922 P.2d 347 (Haw. 1996), and it stems from horrific multiple murders perpetrated by Orlando Ganal. Orlando's wife had an affair with David Touchette, and after Mabel eventually left Orlando, Orlando killed his and Mabel's son, Mabel's parents, and several family members of Touchette's. (Touchette wasn't injured, and Mabel was injured but not killed.)

Touchette's remaining family members proceed to sue ... Mabel. One of their theories was that Mabel was responsible for not adequately controlling Orlando, or at least for not adequately warning people about his dangerousness. But the Hawaii Supreme Court rejected that, adhering to the general rule that people have no legal duty to try to prevent crimes by their spouses.

Yet then the Hawaii Supreme Court held that Mabel could be liable, not on the theory that she didn't do enough to control her husband, but on the theory that what she did was negligent. And what was that?

[The] complaint against Mabel in the present case alleges affirmative conduct, or alleged “misfeasance” on the part of Mabel, in that “defendant Mabel Ganal initiated and maintained a course of conduct which involved taunting and humiliating defendant Orlando T. Ganal, Sr. by flaunting her extra marital love affair with David Touchette,” and that “defendant Mabel Ganal’s extra marital love affair with David Touchette, and her conduct of taunting and humiliating defendant Orlando T. Ganal, Sr. with respect to that affair, caused defendant Orlando T. Ganal, Sr. to suffer severe and extreme emotional and mental distress and depression,” thereby implicating the duty described by sections 302, 302A and 302B....

[T]he allegations state a claim that potentially could warrant relief under a theory based on the duty stated in sections 302, 302A and/or 302B.... [W]e vacate the circuit court’s order granting Mabel’s motion to dismiss and remand for further proceedings consistent with this opinion.

Section 302B (of the Second Restatement of Torts) provides, "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal." After plaintiffs won at the Hawaii Supreme Court, and had their claim reinstated, the case settled, for an amount that is not a matter of public record.

Now I certainly don't endorse cheating on one's spouse, or "taunting and humiliating [one's spouse] ... with respect to that affair." But it seems to me that people should not have a legal obligation to organize their love lives in order to avoid "unreasonabl[y]" provoking mentally unstable spouses or lovers.

What's more, the court's rationale is hardly limited to cheating spouses, since the court expressly rejected the theory that the spousal relationship itself created liability. Rather, it's based on a broad theory that certain kinds of behavior towards people may be negligent if they "involve[] an unreasonable risk" of provoking a criminal attack. An ex-girlfriend who breaks up with an ex-boyfriend in a supposedly unreasonably "humiliating" way might well be equally liable.

After all, the risk of violent reaction by the ex-boyfriend might be as great, and as foreseeable, as the risk of violent reaction by the husband. Perhaps as a class husbands would be more upset than ex-boyfriends, because they might have built up greater expectations of lifelong commitment. But certainly some jealous ex-boyfriends might well pose a high risk of violent retaliation against their ex-girlfriends' new boyfriends' families. And certainly the ex-girlfriend might well know that the ex-boyfriend has such a tendency.

This is an example of something I've remarked on before: how tort law sometimes unduly interferes with people's liberties. People should be free to leave their lovers, and even "flaunt[]" their new relationships, without a government agency deciding whether such behavior was "unreasonabl[e]" and imposing legal liability based on such a decision. Even if this is not so as to cheating during a marriage, it should certainly be so as to leaving a spouse or a lover, and as I said the court's rationale would equally apply in such a situation — this wasn't a divorce claim or an alienation of affections (or criminal conversation) lawsuit premised specifically on a spouse's adultery, but a claim that could equally well apply with no adulterous conduct at all.

Nor is it sufficient that a jury might reject the plaintiff's claim. If the claim can go to the jury, and can't be quickly and comparatively inexpensively disposed of on a motion to dismiss, then the expense and risk of litigation pressures defendants to settle, even if a jury might eventually do the right thing after hundreds of thousands of dollars in fees are spent. The government is thus still interfering with people's liberty to deal with their love lives as they see fit, without fear of government-imposed liability for supposedly unreasonable "flaunt[ing]" of one's new relationships.

Naturally, people who are involved with people who seem likely to become murderers already feel plenty of constraint on their liberty. They may well be too scared to leave a lover or spouse, may feel the need to hide any new relationships, and may feel the need to soft-pedal matters around the lover or spouse, rather than telling the truth about how they really feel. I just think that the law shouldn't add to that constraint on liberty, even in the service of trying to prevent future murders.

"Cash for Clunkers" is an amazingly successful stimulus program, right? How else to explain its immense popularity? Not so fast.

Congress budgeted $1 billion to to provide car-buyers of rebates up to $4,500 when trading in a qualifying older vehicle for a new, more fuel-efficient one. The money was supposed to last into November, but it's already gone. Does this mean it worked? Not necessarily. As Jeremy Anwyl of Edmonds.com explains, it appears the program shoe-horned months worth of car sales into a week or two, and may not have increased overall car sales much at all.

I love a good sales surge as much as anyone. But it’s not that simple. First, it’s not clear that cash for clunkers actually increased sales. Edmunds.com noted recently that over 100,000 buyers put their purchases on hold waiting for the program to launch. Once consumers could start cashing in on July 24, showrooms were flooded and government servers were overwhelmed as the backlog of buyers finalized their purchases.

Secondly, on July 27, Edmunds.com published an analysis showing that in any given month 60,000 to 70,000 “clunker-like” deals happen with no government program in place. The 200,000-plus deals the government was originally prepared to fund through the program’s Nov. 1 end date were about the “natural” clunker trade-in rate.

Clearly, cash for clunkers was underfunded from the start. Consumers quickly figured that out and rushed to take advantage before funding ran out.

This sales frenzy was inevitable. We have crammed three to four months of normal activity into just a few days.

While automakers may like the program, there's little reason to believe it will contribute to an economic recovery -- and even less reason to think the program needs another $2 billion, as approved by the House of Representatives. More from the WSJ and Derek Thompson.

Few paid much attention when Congress passed, and President Bush signed the Consumer Product Safety Improvement Act in 2008. Indeed, it's almost certain that few who supported the law had much understanding of its likely consequences.

One person who's paid substantial attention to the CPSIA, and the havoc it's created for many industries is Overlawyered's Walter Olson. In regular posts he has noted how the law's absolutist requirements effectively bans the sale of all sorts of products even where there is no health risk. Among those particularly hard hit are sellers of second-hand clothing, furniture, and books.

The CPSIA's latest victims are rhinestones and crystals used in children's clothing. Crytals and glass beads are subject to the law because they contain trace amounts of lead, and lead can do nasty things to children if ingested and absorbed into the bloodstream. Although lead in children's projects can be a very serious concern -- as with lead paint -- it does not appear there is any evidence that tiny amounts of lead in rhinestones and crystals poses any risk, even if ingested. No matter. As reported here, the Consumer Product Safety Commission refused to grant an exemption for these items because, as several commissioners noted, the law provides no basis for such an exemption. As a conseuqence, children's apparel makers will no longer be able to use rhinestones for children under age 12, and (as I understand the law) second-hand clothing stores will not be able to sell children's clothing with rhinestones either. Overlawyered has more here.

In a statement accompanying the decision, Commissioner Nancy Nord noted that it would make sense to apply a de minimis standard in enforcing the CPSIA. One of the law's sponsors has even urged that approach. But the actual law itself is not so flexible. And so it goes.

One issue – tangential, admittedly, to the main debates, but interesting and important nonetheless – caught my eye. Wilentz had some stinging criticisms of Henry Louis Gates’ recent book (Lincoln and Race and Slavery), and Gates, in response, spends most of his time (rather oddly) arguing with Wilentz not about Lincoln, but about Jefferson. “When Thomas Jefferson wrote ‘All men are created equal,’” Gates writes, “he did not have African Americans in mind – or so I claimed in Lincoln on Race and Slavery.” It’s a claim, as Wilentz notes in his reply to Gates’ response, “that scholars have been debating . . . for some time, [and] there is a strong case to be made for this claim, but also room for measured skepticism.”

This caught my eye, of course, because, as faithful VC readers know (because I remind them ad nauseum), I’ve just published a book about Jefferson – probably the only book about Jefferson in the past 20 years in which the word “slavery” (or the name “Sally Hemings”) does not appear. I thought long and hard, in the decade or so during which I was working on the book, about that, and about what it meant. I sometimes wondered whether there was something wrong – or possibly even immoral – in that, the (very rough) equivalent of writing a book about Hitler’s painting skills and passing over his murder of millions. It gave me considerable pause. In the end, I was comfortable with my judgment – though I had a fair bit to say about Jefferson’s (rather complicated) views on slavery (much of which I put into a paper I presented at a symposium back in 2001 at Middlebury College on that issue), they were simply not relevant (at least, not in any way I could see) to the subject matter of my book, which was ultimately about governance and law on the Internet and how Jefferson’s ideas could illuminate those questions for us; I wasn’t writing a comprehensive Jefferson biography but instead trying to use Jefferson’s ideas, and any of his ideas that didn’t help me think about the Net (and there were many) were jettisoned along the way.

But having said that, let me weigh in on the “measured skepticism” side of this argument. I don’t believe we know, or can ever know, exactly what Jefferson “had in mind” when he wrote the phrase “all men are created equal.” But on the more important question – viz., what did the phrase “all men” mean, to the author, to contemporaneous readers, and to posterity – the document itself has one vitally important clue. Jefferson’s original draft of the Declaration included the following paragraph in its lengthy list of King George III’s “abuses and usurpations” through which he had attempted to impose “absolute Despotism” upon the Colonies:

“He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative [i.e., he has unjustly exercised his veto powers over Colonial legislation], suppressing every legislative attempt to prohibit or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.”

[The capitalization (“MEN,” “CHRISTIAN”) and the underlining in this passage are all Jefferson’s own, taken from his own copy of the draft]

Much has been written by scholars about this paragraph (which, like the anti-slavery provisions in Jefferson’s draft of the Ordinance of 1784, was deleted by Congress before final approval of the document) – about Jefferson’s motivations for including it in the draft, about the Congress’ decision to excise it from the final Declaration, etc. But on the textual construction point, it is deeply significant (and possibly dispositive): “MEN” – African-Americans, obviously – were bought and sold as part of the “execrable commerce” of slavery. And all “men” were created equal.

Jefferson took enormous pains later in life to preserve his early draft, to make sure that history knew that it in his Declaration of Independence, slavery was deemed “cruel war against human nature itself,” that the “men” declared equal in the Preamble included those who were “bought and sold,” and that this “execrable commerce” in human souls violated the “most sacred rights of life and liberty.”

And then there’s the “pursuit of happiness” to which all men were entitled, along with life and liberty. Jefferson’s use of this phrase in the list of natural rights has long been something of a puzzle. On the one hand, the prevailing view of the Declaration of Independence is, as Pauline Maier writes in her exhaustive history of the document (American Scripture), that it merely “summarized succinctly ideas defended and explained at greater length by a long list of seventeenth-century writers,” that the ideas it expressed were “absolutely conventional among Americans of [Jefferson’s] time.” Jefferson himself admitted as much; that, he said, was the whole point. When John Adams wrote, using language more colorful than, but in substance identical to, Prof. Maier’s, that “there is not an idea in [the Declaration of Independence] but what had been hackneyed in Congress for two years before,” and that the “substance of it” was already “contained in the Declaration of Rights [enacted by] Congress in 1774,” two years before Jefferson set to work, Jefferson responded: “That may all be true.”

“I did not consider it as any part of my charge to invent new ideas altogether, [or] to offer no sentiment which had ever been expressed before. . . . [T]he object of the Declaration of Independence [was] not to find out new principles, or new arguments, never before thought of, [or] to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. [Not] aiming at originality of principle or sentiment, . . . it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day . . .”

But at the same time, at a critical juncture in this “conventional” document, Jefferson takes a turn to the decidedly, and fundamentally, unconventional. “Life, liberty, and property” was the conventional formulation; the revolutionary generation’s favorite political philosopher, John Locke, had established that familiar trilogy almost a century before, and Congress, in the 1774 Declaration of Rights to which Adams refers in the quotation above, had, conventionally, followed the Lockean outline:

“The inhabitants of the English colonies in North-America, by the immutable laws of nature . . . have the following RIGHTS: That they are entitled to life, liberty, and property . . .”

That, too, is how George Mason’s enormously influential Virginia Declaration of Rights of the same year (1774) – another document with which Jefferson, and the other delegates in Philadelphia, were intimately familiar – put it:

“All men are by nature equally free and independent, and have certain inherent rights, . . . namely, the enjoyment of life and liberty, with the means of acquiring and possessing property . . .”

That formulation was, for obvious reasons, of considerable comfort to the slave-owning class, for it put their “ownership” of slaves – their “property” interest – on equal rank, in the natural order of things, with the “life” and “liberty” of those over whom that ownership was exercised.

But with the stroke of the pen, Jefferson took that away. Whatever comfort one might have taken in the notion that owning other human beings was in the natural order of things – a widespread view in the eighteenth century – that notion was not to be found in the Declaration of Independence.

Nobody understood all this (or explained it) better than Lincoln himself, and he should have the last word(s). In the Fifth Debate with Stephen Douglas in 1858, Lincoln said this:

The Judge [i.e., Douglas] has alluded to the Declaration of Independence, and insisted that Negroes are not included in that Declaration; and that it is a slander upon the framers of that instrument, to suppose that Negroes were meant therein; and he asks you: Is it possible to believe that Mr. Jefferson, who penned the immortal paper, could have supposed himself applying the language of that instrument to the negro race, and yet held a portion of that race in slavery? Would he not at once have freed them? I only have to remark upon this part of the Judge's speech, (and that, too, very briefly, for I shall not detain myself, or you, upon that point for any great length of time,) that I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the Negro was not included in the Declaration of Independence. I think I may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any President ever said so, that any member of Congress ever said so, or that any living man upon the whole earth ever said so, until the necessities of the present policy of the Democratic party, in regard to slavery, had to invent that affirmation. And I will remind Judge Douglas and this audience, that while Mr. Jefferson was the owner of slaves, as undoubtedly he was, in speaking upon this very subject, he used the strong language that ``he trembled for his country when he remembered that God was just;'' and I will offer the highest premium in my power to Judge Douglas if he will show that he, in all his life, ever uttered a sentiment at all akin to that of Jefferson.

The Declaration, Lincoln wrote in 1859, gave “liberty, not alone to the people of this country, but hope to the world for all future time, . . . promise that in due time the weights should be lifted from the shoulders of all men, and that all should have an equal chance.” The cause of American progress and American greatness was not the Constitution or the Union, but “something back of these, something entwining itself more closely about the human heart: the principle of ‘Liberty to All.’”

“All honor to Jefferson – to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression. He supposed there was a question of God's eternal justice wrapped up in the enslaving of any race of men, or any man, and that those who did so braved the arm of Jehovah – that when a nation thus dared the Almighty every friend of that nation had cause to dread His wrath.”

Taking his cue from the 25th chapter of the Book of Proverbs – “a word fitly spoken is like apples of gold in pictures of silver” – he wrote:

“The assertion of that principle, at that time, was the word 'fitly spoken' which has proved an 'apple of gold' to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was made, not to conceal, or destroy the apple; but to adorn, and preserve it. The picture was made for the apple – not the apple for the picture. So let us act, that neither picture, or apple, shall ever be blurred, or bruised, or broken.”

Now it is undoubtedly true (as Wilentz reminds us in the essay referred to at the top of this posting) that one always has to read Lincoln’s words carefully, and in their proper (political) context, in order to understand their meaning. Lincoln wrote and said many things that were crafted primarily for the purposes of political expediency; he wanted to claim Jefferson for his side, and whether he “actually believed” what he wrote is impossible to fathom – but I’ll take him at his word.

I am not trying to be snarky here. This is a genuine question. Suppose, by assumption (as some reports have it) that a recovery is now getting underway - this might be true or false, take it as true by assumption. Unemployment, let us also take by assumption, will continue to rise as a lagging indicator. The recovery as currently projected will be weak. But a vast amount of the stimulus money has not yet gone out the door. I also understand that a large part of that has not even been committed, at least not in a firm way (I'm being squishy here, I realize: do I mean legally committed by contract, committed by legislation or earmark or something similar, what is 'committed' or 'spent' exactly?).

My non-snarky, technocratic policy question is - suppose we concluded that the recovery is actually starting, and we decided to not spend any more money on stimulus that was, in principle, aimed at classic demand-side stimulus? What would be the likely consequences?

Would an explicit, upfront decision, for example, not to spend more tank the incipient (and for purposes here, assumed) recovery because, for example, everyone's plans were premised on this continued spending? Or because the recovery at this point just is stimulus spending and the anticipation of more of it; it is not actually the private economy auto-generating its own profits but instead effectively merely recycling government recovery funds? And the effect on monetary policy - deflationary pressures, for example? Other monetary effects, good or bad?

Or, alternatively, would canceling the rest of the stimulus rev up the private economic sector, currently fearful of tax increases and interest rate hikes down the road and all the long term drag on private economic activity created by the stimulus itself? Unleash the 'animal spirits' and all that?

Or would the effect be something altogether different?

Finally, what would happen if we decided to slash stimulus spending drastically, but still use a chunk of it in the ways that some proposed back when the stimulus was being debated: Fund greater and longer term unemployment benefits and subsidize COBRA or related health insurance protection for individuals and families, but not undertake vast new government spending on infrastructure, etc.?

My interest here is in trying to puzzle out where alternatives might lead. It is not an invitation to rant or make merely political speeches. Please give me reasoned arguments, preferably looking to upsides and downsides to each of these policy alternatives.

Professor John Culhane is doing a series of posts this week on the nature, extent, and potential resolution of conflicts between religious liberty and the legal recognition of same-sex marriage. The first post, a useful and interesting taxonomy of the issues, is up this morning. I recommend it to those who follow the subject.

Sunday, August 2, 2009

On Friday, the Washington Post reported on new evidence documenting Karl Rove's influence on the decision to remove several U.S. Attorneys. Rove now acknowledges being a "conduit" for complaints from home-state politicians about some of the fired prosecutors and copies of e-mails obtained by the Post suggest he and White House counsel Harriett Miers were both more involved than either has publicly acknowledged. This is but one example of alleged politicization of the Justice Department under the Bush Administration.

President Obama promised to end the politicization of the Justice Department. Responding to criticism of his involvement in controversial pardons during the Clinton Administration, Attorney General Eric Holder promised Congress he would "work to restore the credibility of a department badly shaken by allegations of improper political interference." Writing in The Weekly Standard, Jennifer Rubin suggests this promise has yet to be fulfilled

in the first seven months of the Obama administration, a series of hyper-partisan decisions, questionable appointments, and the inexplicable dismissal of a high-profile voter intimidation case against the New Black Panther party have once again fanned suspicions that the Justice Department is a pawn in partisan political battles.

Orin Kerr and I posted extensively on Holder's treatment of OLC, yet this is just one of the many episodes detailed in Rubin's piece. If her account is accurate, it's quite troubling.

Two interesting developments this past week in the ongoing transformation of copyright law and copyright principles on the Net. In Boston, BU grad student Joel Tenenbaum was found liable for willfully infringing copyright* by (admittedly) downloading copyrighted music (using KaZaa and other p2p file-sharing services) and reproducing and re-distributing the downloaded files. It's only the second of the dozens and dozens of lawsuits brought by the RIAA against individual file-sharers to reach a judgment (the other resulted similarly in a favorable verdict for the RIAA).

Tenenbaum's lawyers — Charlie Nesson of Harvard Law and colleagues/students from the Berkman Center — have announced they'll appeal, and they may have good grounds for reversal; the judge eliminated any consideration of Tenenbaum's "fair use" defense, and, though I haven't been following the litigation terribly closely, that ruling strikes me as questionable at best.

One interesting little aspect of the judgment: The jury awarded the record companies $675,000 in damages — $22,500 for each of the 30 songs on which the suit was based. As my colleague James Grimmelmann of NY Law School has pointed out, that's a curious number for the jury to have chosen. The statutory damage provisions of the Copyright Act (17 USC sec. 504) allow a jury to award damages of $750 (minimum)to $30,000 (maximum) for each work infringed (which can be raised, or lowered, by the judge in certain circumstances). The minimum amount that the RIAA could have been awarded, then, would have been a total of $22,500 ($750 x 30 songs). Could it be they got mixed up, and instead awarded plaintiffs $22,500 for each song? Why else would they have chosen that amount? Strange ...

UPDATE: Ben Sheffner has a pretty persuasive refutation, here, of the idea floated above that the jury screwed this up

But better news comes via Cory Doctorow over at boing-boing: "Record Company Embraces Use of its Music in YouTube Wedding Video, Makes Money." The Youtube video "JK's Wedding Entrance Dance," which has become something of a viral sensation, featured Chris Brown's song "Forever," used without permission. Brown's record label, instead of demanding that YouTube take the video down (which it could have done, successfully) and/or suing the folks who posted it (who now, incidentally, have their own webpage devoted to this particular video phenomenon), opted to add a link on the YouTube page where users can go to buy the original track. They have, as Doctorow puts it, "made a truckload of money." Not only have their been loads of click-through purchases from the YouTube page, but in a kind of penumbra effect, Brown's original track, and his own video, have, more than a year after release, zoomed back to the top of the iTunes and Amazon charts.

This is a story noteworthy only for its noteworthiness — that is, for the fact that this sort of arrangement is considered innovative and not Standard Operating Procedure for the record labels. The promotional opportunities presented by phenomena like this are prodigious, and have gone largely unrealized because of the labels' largely unwavering enmity towards any infringing uses of their works. This is, hopefully, a harbinger of things to come. [And thanks to Sarah Post for pointing me to Doctorow's story]

Another Swim Meet, Another Econo-Culture Tome Reread, and a Reflection on the Theory of Moral Sentiments:

Last weekend, at the Divisionals for my kid's swim team, it was Michael Lewis's Liar's Poker. This week, at the All-Stars, where the Kid swam fly and medley, I re-read (finally finished this morning), Tyler Cowen's In Praise of Commercial Culture (2000). It traces the relationship between art and commerce, and here is a sample of the reviews (yes indeed, I've cherry-picked, as I like the book, true, very true.) (And this post goes on for a really long time after the page break - if you plan to read it, better grab a bagel and a beer and sunscreen):

In Praise of Commercial Culture by Tyler Cowen...is a treasure trove of insights about artistic genres, styles and trends, dexterously illuminated through economic analysis. Cowen's main argument is that capitalism--by fostering alternate modes of financial support and multiple market niches, vast wealth and technological innovation--is the best ally the arts could have.
--Andrew Stark (Times Literary Supplement )

A masterful performance...Cowen has provided a marvelously exuberant counterblast to the wide-spread view that in our philistine, materialist world the arts are going to hell in a handbasket. They are not. They are alive and well, and thriving as never before. Cowen goes a long way towards explaining why. For anyone with any interest in the history, funding and encouragement of the arts, In Praise of Commercial Culture is not to be missed.
--Winston Fletcher (Times Higher Education Supplement )

[Tyler Cowen] argues that market forces stimulate the production of culture, high and low, and that far from homogenizing taste, they tend to produce art that is more specialized and diverse than it would be otherwise. In three especially lively chapters, Cowen traces the markets for the written word (where the printing press has been around for centuries), music (where recording technology became available only relatively recently), and painting (where reproductive technology counts for much less)...The picture of the art markets that emerges from In Praise of Commercial Culture is a reassuring one...It is less possible than ever before to create the monopoly on commercial culture that is the objective of totalitarian states. Within wide bands of fad and fashion, people are going to decide for themselves what they like.
--David Warsh (Boston Sunday Globe )

(Cowen, a George Mason professor, is also now an economics columnist for the NY Times, and has a very interesting column today on the argument made at TheMoneyIllusion econ-blog that, particularly given the difficulties and downsides of fiscal policy today, the Fed should deliberately aim for re-inflation, at the 2-3% level, and should even move to negative interest rates (see Mankiw's blog for discussion of what and how) - essentially, penalties on bank retention of reserves. I have no settled view of any of this, but Cowen is a clear writer and his columns are always worth reading.)

Both when I first read In Praise of Commercial Culture and on this re-read of it, I took away a far broader lesson than simply an argument over public or private arts funding. The book seemed to me, then and now, to echo the cultural forms of life that the proto-economist-philosophes of the Scottish Enlightenment saw in the rise of commerce and capitalism....

Adam Smith, Adam Ferguson, David Hume and others of that period and school of thought saw in the rise of commerce many virtues for society and culture quite apart from simply a material increase in wealth. They saw it as the rise of 'civil society' - the social space for the 'moral sentiments' or the 'agreeable sentiments' or the 'social virtues'. Nowadays, following the re-conceptualization of the term 'civil society' following the theorizing of Eastern Europeans under Soviet communism (Adam Michnik, for example), we use the term to refer to a social space that lies between the state and the market, in which social life that is mediated neither by state authority nor market discipline holds sway. (Hegel and Marx saw civil society as something different still.)

Cowen's book can be understood as praise for the mixed up, materially conscious, market engaged, and yet also aesthetically involved, world of an active business culture that is interested in money and interested in the culture that money can support, buy, foment, interact with ... there is a space for the art that is completely uninterested in commerce or the changes that commerce indubitably makes upon the art it supports. The composer Charles Ives, who supported himself in a business executive position, and whose music, to say the least, made no concession to the market, is one 20th century example.

The TLS once asked me to review a couple of books on amateurs and amateurism in music. The books included a final edition of the late Wayne Booth's invigorating memoir of being an amateur cello player, while being professionally a professor of English at the cutting edge of criticism, For the Love of It. And the review included an odd, self produced volume on the nature of amateurism called Bloody Amateurs (see? not even on Amazon!). Taken together, the two works illustrated the split nature of amateurism - split, in one sense, by the question of what it means to be a "professional," but split in a different sense by its relationship to commerce and commercial culture. On the one hand, there is Booth's (and for that matter, my) amateurism in playing the cello:

Booth came to the cello in his thirties with prior music lessons as a youth in the wind
instruments, but no experience in strings. He is refreshingly practical in his approach; he
chose the cello over the piano and the violin because (especially in those years in the 1950s
when the cello was less appreciated than it is today) there were fewer cello players and so
the instrument put him in greater demand in amateur chamber ensembles. Music for Booth is
not finally about scholarship, or about listening, it is about playing -and his book is really a
reflection on the inadequacy of our modern reduction of the "love of it" to simplistic notions of
mere "pleasure".

It causes the reader to acknowledge the heterogeneity of the pleasures involved in making
music; the satisfaction in playing well, the pride one takes in learning a difficult piece or
passage or technique, the buzz in one's fingertips and the sense of completeness with the
bow when the turn is done just right, the pleasure of playing with others, the comfort of a
shared society, the joy of not just hearing, but making, the music, the wonder at the notes
lingering on the air. These are, Booth insists, distinct and distinctly experienced pleasures.
And when he says that amateurs do it for the love of it, that is not the end of the matter, but
rather the beginning of understanding the neglected varieties of pleasure within the human
experience and how, within amateur music, they combine together, the abstract and the
visceral, the head and the gut, to make the activity, for those of us who seek to do it,
irresistible and - it is not too strong a word - sublime.

What Booth does not address, however, is the larger world of music itself, and how the
collapse of the amateur as performer is part of the complicated shift in relations between
musical professionals and their audience. For the Love of It is a work fundamentally about
the interior experience of an amateur striving to play the most traditional canon of
traditionally serious music, the ones "everyone" learned about in those first years at the
piano. It therefore engages not at all with contemporary music, or with the avant-garde in any
form. Booth, who as a literary theorist was on the cutting edge of criticism throughout his
career as professional and professor, would no doubt say, with blunt practicality, that such
music is not playable by amateurs, even good ones, and that anyway it's neither attractive
nor beautiful: the professor comes to music as a respite from the professional cutting edge in
his own field, not to carry it from vocation into avocation.

By contrast, there is Ives. Is Ives an amateur? In what sense? He makes no concessions to commerce, commercialism, demands of the market that consumes culture, the culture industry:

Ives understood after graduating from Yale that "he would never make a professional
musician. Rather than compromise his radical, rugged and abrasive style, he picked a
conservative profession (insurance), made a million, and composed at weekends, rarely
hearing his music performed." Ives is the role model for many of the artists in this book [Bloody Amateurs], and
yet despite the sneers of "amateur" status implied in comments by Elliott Carter and Aaron
Copland, it would be hard to characterize him as anything other than a dedicated,
consummate professional.

Far from being an amateur, at least in the sense that Booth means it, Ives's artistic
professionalism was so complete that it denied him the possibility of compromising it for any
kind of commercial success.

Or any interaction with the 'middling' world that mingles culture and materialism. There's a separate discussion, for another day, about what the culture industry represents at this moment; but Jed Perl has, as ever, a splendid essay in the current The New Republic on exactly this issue, covering several exhibitions of painting in New York. Suffice it say here that the vibrant commercial culture that Cowen has in mind is very far from what the 'culture industry' is all about.

I haven't really wandered all that far from Cowen's book, or at least the culture it praises. There are vibrant commercial cultures with very little interest in 'culture' in the sense of art, aesthetics, meaning beyond materialism or beyond consumerism. One compares Singapore to New York, for example, or Hong Kong. The priorities of a generation not far out of utter poverty are entirely understandable; likewise the priorities of a generation falling into genteel poverty will have its own impact upon cultural production, and I wonder what the effects will be upon fiction and literature.

But let me return, finally, to the virtues that the philosophes of the Scottish Enlightenment saw in commercial culture, and to which Cowen, in a larger sense, pays tribute in his book. (I draw here from one of the great short books on civil society, Marvin B. Becker, The Emergence of CIvil Society in the Eighteenth Century.) They include, to start with, a culture built upon public trust - a society of merchants in which people would trust interactions with strangers, not because they trusted strangers, but because they trusted the neutral enforcement of contracts by public institutions. A society based around the full mobilization of its human capital and not limited to cousin-trust is a wealthier society, and artistically richer, among many other advantages. (There is an issue of how this 'contract enforcement' view of public trust fits with embedded agency and non-contractual fiduciary duty, but I will ignore that here.)

Second, Ferguson and Smith saw commerce as a benevolent activity, not simply in the sense that it makes society wealthier, but because it provides a productive and benevolent outlet for energies that might otherwise be diverted into war among those wanting to gain wealth and power on that basis.

Third, it provides a public space with reasonably neutral commitments that get away from religion and other elements of constitutive identity around which one can easily - and the generation before these philosophes did - wage bloody civil and religious wars.

Finally, commerce lays the foundation for the separation of public and private, in a rough and ad hoc yet still identifiable way. It thus provides the bourgeois cultural and material floor under the claimed-universal but, in fact, culturally-supported and -embedded artifice of liberalism as a political ideal.

There is a method behind all this reading and re-reading. I suspect we are going to see a revival of institutionalism in economics literature. Behavioral economics is not the only corrective to hyper-rationalism and the assumption of hyper-efficiency everywhere one supposedly looks. Kenneth Arrow is quoted in a recent interview on health care markets with the Atlantic's Conor Clarke as pointing to 'extra-market', institutional forces of professionalism and culturally embedded ideals of performance and service that are not accounted for by market drivers. There will be a sociological revival, I suspect. Cowen's book fits into that in a certain way.

But there will also be a revival of an even older literature than, say, Weber. It is the claim that if markets and economic forces must be explained not only on narrow rationality grounds, but also drawing in behavioral economics and sociological-institutional explanations, they must also be accounted for far greater attention to the 'moral sentiments'. Far greater attention, that is, to affect, social affect, affections, the virtues of sympathy and the 'agreeable sentiments', the psychological and moral qualities of 'sociability'.

It is not an accident that these same Scottish Enlightenment philosophes I have cited above praising the agreeable virtues of peaceable exchange and commerce should also be committed to offering theories of the interior moral qualities of honor, trust, 'bindingness', sympathy, and all the other affective qualities that undergird what might otherwise, on the surface, appear to be merely the enforcement of contracts.

I mentioned in an earlier post the loss of any significant attachment in law and economics to theories of agency as affective relationships, and not merely enforceable contracted duties, undertaken or not according to rational expectations of fulfilment. That is not, at bottom, the nature of agency, which is fiduciary duty. Fiduciary duty is finally premised upon sympathy and affect - rules and principles for dealing with others based upon a near-Adam Smithian notion of sympathetic response, how you would deal with yourself. (See this interesting paper by Eric Rasmusen.

Or, to put all this in other terms, The Wealth of Nations does not stand alone. It stands in tandem with a theory of moral psychology, one that Smith himself surely saw as being as crucial to the overall enterprise as the division of labor and gains from trade. That moral psychology is found in the much-ignored work, a work read perhaps by philosophers and intellectual historians, but not economists, but which for Smith stood alongside and as an equal pillar, the theory of affect and social virtue - Smith's Theory of Moral Sentiments.

This is not a crazy call to abandon rationality or its quantified expression in economics, heaven knows. Please don't misunderstand me on this point. I have too many conversations with, for example, anthropologists who believe they understand monetary economics that I make no claim to understand, better than the Fed does, because they understand something about exchange in hunter-gatherer societies. This is not the current argument (often unexpressed from academic politeness but, let's facing, one that has occurred to bunches of people) that - professional economics apparently having fallen down on the job in the financial crisis - let's jettison it in favor of re-making economics a branch of the English department. But it is a claim that it's time to draw back into economics a necessarily qualitative account of the moral sentiments in economic life as we know it. This is a different inquiry from behavioral economics or the sociology of markets. It is moral psychology in the traditional philosophical sense, the 'relational' teachings of how we use and intend words of not merely logical force, but affect.

There might indeed be room, in other words, after a really, really long time, for the humanities once again in economic explanation.

(Update: Responding to comments, particularly the important first comment, let me add this:

T Gracchus writes: As a story about Hume or Smith, this pretty farfetched. Moral Sentiments, for Hume and Smith, have a rather different foundation, and explaining commercial activity is not it. More to the point, the 'sentiments' to be explained have no particular connection to the commercial culture — the sentiments aren't the sentiments of particular economic culture. But points for creative reassembly.
KA responds: Blogging written without a lot of review, so apologies for not being clear. I don't disagree with you at all that the moral sentiments to be explained have no particular connection to the, or a, commercial culture. I agree entirely. What I would want to say (and did not express particularly well) is that even this commercial culture requires explanation at least in part by reference to moral sentiments; one ought not to jettison them from the explanation for how that culture works entirely and think that one has nonetheless accounted for it. I don't mean to suggest, although I'm sure I do, that the theory of moral sentiments is a theory about this or any other particular commercial culture.
One other remark going to the comments. When I talk of the virtues that Smith, Hume, Ferguson, others of that period and broad body of thought, saw in 'commercial culture', I don't really mean, in this context, any sense of the 'inevitability' or near-metaphysical nature of the market. I mean in this context something far more historically specific and contingent, viz., that an important part of the virtue they saw in commercial culture arose out of the previous generation's experience of civil war over religion. It might or might not be some universal response - but an important part of their endorsement had to do with endorsing 'milder' ideologies that sought pragmatic accommodation to different views, helped in very practical ways to establish public social spaces in which religion was not the defining feature. It is not a claim about universal human nature or social institutions, but instead an understanding of what, in their specific circumstances, they wanted to avoid. Becker has an outstanding discussion of why the Scottish Enlightenment figures would be attracted to a less 'heroic' public morality than the one that had animated the civil wars. Becker's discussion of Walter Scott is particularly compelling.